DOL Says Employers May Not Delay Designation of FMLA Leave
Author: Michael Cardman, XpertHR Legal Editor
March 27, 2019
Employers may not delay designating paid leave as Family and Medical Leave Act (FMLA) leave or permit employees to expand their FMLA leave beyond their 12-week entitlement, according to a new opinion letter from 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.
Employers may require, or the employee may elect, to substitute accrued paid leave (for example, vacation time, sick time or personal days) to cover any part of the unpaid FMLA entitlement period. In this case, the two types of leave run at the same time (concurrently) in order to reduce the total amount of paid and unpaid leave employees take in a year, and to allow employees to receive pay during an otherwise-unpaid FMLA leave.
Employers may allow employees to take FMLA leave and accrued paid leave consecutively, instead of concurrently. But if they do so, employers may not allow employees to use all of their accrued paid leave first without designating it as FMLA leave and then use their FMLA leave allotment, the DOL affirmed in its opinion letter. Otherwise, this may result in an employee receiving more than 12 weeks of FMLA leave.
FMLA regulations require employers to designate leave as FMLA-qualifying and, usually, 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."
The DOL said the regulations prohibit employers from delaying the designation of FMLA-qualifying leave as FMLA leave. "Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave," the agency states, citing an FMLA regulation and a 2001 ruling from the 11th Circuit Court of Appeals.
The DOL noted that its opinion letter conflicts with a 2014 ruling from the 9th Circuit Court of Appeals. Littler shareholder Jeff Nowak counseled employers operating in the 9th Circuit - which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington - to designate the leave under the FMLA anyway.
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.