Section 31-51qq-18 - Is FMLA leave paid or unpaid?(a) Generally, FMLA leave is unpaid. However, under the circumstances described in this section, FMLA permits an eligible employee to choose to substitute accrued paid leave provided by the employer for unpaid FMLA leave. If the employee does not choose to substitute accrued paid leave for unpaid FMLA leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave, except that the employee may choose to retain up to two (2) weeks of accrued paid leave. The term substitute means that the paid leave provided by the employer and accrued pursuant to established policies of the employer will run concurrently with the unpaid FMLA leave.(b) For purposes of this subsection, "sick leave" means an absence from work for which compensation is provided through an employer's bona fide written policy providing compensation for loss of wages occasioned by illness, but does not include absences from work for which compensation is provided through an employer's plan, including, but not limited to, a short or long-term disability plan, whether or not such plan is self-insured. Where an employee has earned or accrued paid vacation, personal or sick or medical leave with the employer, the employee may substitute that paid leave for all or part of any unpaid FMLA leave needed to care for the employee's own serious health condition, to care for a family member who has a serious health condition, to care for a covered servicemember, as defined by section 31-51qq-50(a)(1) of the Regulations of Connecticut State Agencies, or for the employee to serve as an organ or bone marrow donor, except that the employee may choose to retain up to two (2) weeks of such leave. Substitution of paid sick or medical leave under this subsection may be elected only to the extent the circumstances meet the employer's usual requirements for the use of paid sick or medical leave. Except that, if the employer has a bone fide written sick leave policy, it shall allow the employee to use up to two (2) weeks of accumulated sick leave to care for a family member with a serious health condition or for the birth or adoption of a son or daughter.(c) Disability leave for the birth of a child would be considered FMLA leave for a serious health condition and counted toward the employee's leave entitlement under FMLA. Because the leave pursuant to a temporary disability benefit plan is not unpaid, the provision for substitution of paid leave is inapplicable. However, where the employee is eligible for disability leave under the employer's temporary disability benefit plan, the employer may designate the leave as FMLA leave and count the leave as running concurrently for purposes of both the benefits plan and the FMLA leave entitlement. If the requirements to qualify for payments pursuant to the employer's temporary disability benefit plan are more stringent than those of FMLA, the employee shall meet the more stringent requirements of the plan, or may choose not to meet the requirements of the plan and instead receive no payments from the plan and use unpaid FMLA leave or substitute available accrued paid leave. (d) A serious health condition may result from injury to the employee "on or off" the job. Either the employer or the employee may choose to have the employee's FMLA leave entitlement run concurrently with a workers' compensation absence when the injury is one that meets the criteria for a serious health condition. However, if the health care provider treating the employee for the workers' compensation injury certifies the employee is able to return to a "light duty job" but is unable to return to the same or equivalent job, the employee may decline the employer's offer of a "light duty job". As a result, the employee may lose workers' compensation payments, but is entitled to remain on unpaid FMLA leave until the employee's FMLA leave entitlement is exhausted. (e) If neither the employee nor the employer elects to substitute paid leave earned or accrued with the employer for unpaid FMLA leave under the above conditions and circumstances, the employee shall remain entitled to all the paid leave which is earned or accrued under the terms of the employer's plan.(f) If an employee uses paid leave under circumstances which do not qualify as FMLA leave, the leave shall not count against the employee's FMLA leave entitlement . For example, paid sick leave used for a medical condition which is not a serious health condition does not count against the FMLA leave entitlement.(g) Where an employee's earned or accrued paid leave is not substituted for the entire period of unpaid leave to which the employee is entitled under the FMLA, the employee may apply for and be provided with compensation through the Paid Family and Medical Leave Insurance Program, 31-49e to 31-49t, inclusive, of the Connecticut General Statutes, for all or part of any unpaid FMLA leave, provided the employee qualifies for payments under the program.Conn. Agencies Regs. § 31-51qq-18
Adopted effective March 9, 1999; amended 8/3/2022