PTO accrual on FMLA

UPDATED: Sep 30, 2022

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PTO accrual on FMLA


I am asking for advice for employment law, labor law, or similar. My wife and
I had our baby in February of this year. She is on FMLA for 12 weeks.

The first 7 weeks of FMLA she is using her PTO to get paid and the last 5 weeks
will be unpaid. Her company is currently not allowing her to accrue her normal
8.5 hours of PTO per pay period even though she is using her PTO. The HR
representative said that the payroll department stated that she will not accrue
PTO when she is on leave.

There seems to be something wrong here, as an employee using PTO accrues PTO
for vacation time but not allowing PTO to be accrued on the same PTO but used
for leave purposes seems discriminatory. Additionally, my employer allows PTO
accrual when on leave if you are using PTO to be paid just as you would when
on vacation and other individuals I have spoken with stated their employers
allow this accrual on leave as well.

We dont expect to accrue PTO on the unpaid time but did fully expect PTO for
the paid time off. First, can you please give me advice on the legal
requirement of the PTO accrual? Second, can you tell me if this would be
discrimination if her work paid an employee PTO for vacation PTO time but did
not pay an employee PTO for leave PTO time?

Thank you for your help to this matter, it is of great help.



Asked on March 28, 2016 under Employment Labor Law, Arizona


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Actually, the law does not require employers to give employees or allow employees to accrue PTO at all; it being voluntary on the part of employers to provide PTO, they can put whatever rules or restrictions they want on its accrual. Second, when PTO is accrued, it is generally accrued only for actual *work* time--not for leave, whether paid or unpaid. An employer is free to be more generous than this, and to allow PTO to be accured on certain kinds of leave, but is up to the employer whether to allow this and, if so, on types of leave. So it is legal for your wife's employer to not allow the accrual of PTO under these circumstances.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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