Designation of FMLA Leave May Not Be Delayed, Even If Employees Prefer It, DOL Says

Author: Michael Cardman, XpertHR Legal Editor

September 20, 2019

Employers may not delay designating paid leave as Family and Medical Leave Act (FMLA) leave, even if the delay complies with a collective bargaining agreement (CBA) and the employee prefers the delay, according to the US Department of Labor (DOL).

Under the FMLA, employees are entitled to take up to 12 weeks of unpaid, job-protected leave each year for the birth, adoption or foster care placement of a child, for their own serious health condition, to care for a family member with a serious health condition and for military exigencies.

FMLA regulations require employers to designate leave as FMLA-qualifying and to notify employees of this designation in writing within five business days after they have "enough information to determine whether the leave is being taken for a FMLA-qualifying reason."

In a new opinion letter, the DOL responded to an employer whose employees are covered by several CBAs that provide job protection when they use employer-provided paid leave for certain medical and family reasons. Under these CBAs, employees may (and, under one CBA, must) delay taking unpaid FMLA leave until after CBA-protected accrued paid leave is exhausted.

The employer treats this CBA-protected accrued paid leave as continuous employment, meaning it does not affect employees' seniority. The employer asked if it is required to designate FMLA-qualifying leave as FMLA leave when an employee would prefer to delay the start of FMLA leave until after they have used their paid leave to avoid a negative impact on the employee's seniority status under the applicable CBA, thus providing "a greater benefit" than required by the FMLA.

But the DOL reaffirmed its stance - first articulated in another opinion letter issued earlier this year - that FMLA regulations prohibit employers from delaying the designation of FMLA-qualifying leave as FMLA leave, and that neither the employee nor the employer may decline FMLA protection for that leave.

Furthermore, the DOL said the employer would be interfering with its employees' FMLA rights if it does not allow them to accrue seniority when they substitute FMLA leave for accrued paid leave, if the employees would otherwise be permitted to accrue seniority when utilizing accrued paid leave.

DOL opinion letters do not carry the weight of the law, and a court need not defer to them; however, an employer that has an identical fact pattern may be shielded from liability if it follows an opinion letter.