Company mandated concurrent use of NY PFL / FMLA

UPDATED: Oct 1, 2022

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Company mandated concurrent use of NY PFL / FMLA

I’m currently in communication with my
HR department about exercising my NY PFL
right for child bonding. HR responded by
saying that I’ll have to concurrently
use FMLA while using NY’s PFL, in turn
exhausting both leave allowances
ridiculous. The company also told
me that I will have to cash out my
vacation days P.T.O while on FMLA.

None of this makes sense considering
that NY’s PFL provides job protection
while on paid leave. Why use FMLA when
the state has its own leave law- other
than to exhaust your federal right at
the same time? There is something
inherently wrong about this, and no one
in power is protecting the working

So far, I’ve challenged HR and got them
to capitulate that I don’t have to use
my P.T.O as per one of NY PFL rules
while on leave. I also asked the
question whether they can deny me the
right to use NY PFL, or terminate me, if
I refuse to use FMLA.

They didn’t answer that.

I also asked them about where the
concurrent policy orginates from. HR
said it’s an internal policy. Wow…

Can you please help answer the following

1. Can I be denied the right to use NY’s
PFL if I refuse FMLA.

2. Can I be subject to disciplinary
action / termination for refusing FMLA
if protected by NY’s PFL?

3. Can my employer file FMLA on my
behalf, against my will?

Thank you very much. Much appreciated
for any help with this.

Asked on September 24, 2018 under Employment Labor Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Unfortunately, the NY leave does run concurrently with FMLA leave; the goal of the NY law is NOT to give you extra time, over and above FMLA leave, but rather to make at least part of your leave paid--remember, FMLA leave is unpaid. The advantage you get, even though they run concurrently, is to be paid, not unpaid, for the time.
Both PFL and FMLA allow (do not require, but allow) employers to make you use your paid time off; again, the idea is to not let you stay  out of work longer than the total FMLA time, which is what Congress has decided is the most you should be able to miss of work (unless you happen to have more accumulated PTO which you earned than that, or your company chooses to let you stay out longer) but to allow some of the leave to be paid--but using PTO, you get salary for the PTO days while out of work on leave. 
Here is a link to a NY government website you may find useful:

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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