Ask the Experts: Do employees have to use PTO if they can’t work?

We get it: You have a lot of business-related questions during this time of coronavirus uncertainty. We’re here for you. As often as we can, we’ll provide a question (and answers from experts) on pressing issues for New Jersey’s businesses.

Today’s question: Would employees be obliged to use their personal time off or vacation days if they can’t work for a period of time?

Peggy O’Rourke Wood, Chiesa Shahinian & Giantomasi

Courtesy photos
Peggy O’Rourke Wood.

The Families First Corona Response Act, which goes into effect April 2, provides for two forms of paid leave. First, employees are now eligible to receive up to 80 hours of paid sick time if they are unable to work due to various COVID-19 related reasons. The law states that this paid sick time must be available “for immediate use by the employee” and that an “employee may first use the paid sick leave” available under this new law. The law prohibits employers from requiring an employee to use other paid leave provided by the employer before using this new benefit. The act specifically provides that any unused paid sick leave under this provision need not be paid out to the employee upon termination.

The law also provides for paid leave under the “Emergency Family and Medical Leave Expansion Act.” That portion of the bill permits employees to take 12 weeks of leave if the employee is unable to work (or telework) due to the closure of their minor child’s school or day care. Unlike typical FMLA leave, while the first 10 days of such leave are unpaid, the remaining 10 weeks are paid, subject to certain monetary caps. During this Emergency FMLA leave, employees may elect to substitute any accrued vacation leave, personal leave or medical or sick benefits, but employers may not require them to substitute their other paid benefits for this leave.

O’Rourke Wood is a member of the CSG COVID-19 Crisis Management Task Force and the firm’s Labor & Employment Group. Contact her at

Harris S. Freier, Genova Burns

Harris Freier.

The answer depends on whether it is federal or state leave at issue and whether leave is paid or unpaid. Normally, under the Family Medical Leave Act, an employer can, by policy, require an employee to use PTO during the FMLA leave. However, the FMLA is normally unpaid leave.

The situation is more complicated if the employee is receiving paid leave. The FMLA regulation specifically limits itself to situations of unpaid leave. As a result, it was not necessarily surprising that, under the Emergency Paid Sick Leave Act, which is part of the Families First Coronavirus Response Act that provides 80 hours of paid sick leave, which will go into effect no later than April 2, an employer cannot require an employee to use PTO before the employee can receive the paid sick leave under the Emergency Paid Sick Leave Act.

Similarly, in New Jersey, as of July 1, 2019, an employee no longer needs to use PTO before receiving their NJ Family Leave Insurance Benefits.

Freier litigates employment law cases with a focus on restrictive covenant, class actions and appellate matters and routinely handles age, race, religion, gender and disability discrimination cases before state and federal courts. He has a strong traditional labor background, successfully litigating Labor Management Relations Act cases before district and circuit courts. Contact him at 973-230-2079 or

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