Employers May Not Delay FMLA Designation for Employee Leave

On March 14, 2019, the Department of Labor Wage and Hour Division (“WHD”) issued an opinion letter (FMLA2019-1-A) clarifying use of leave under the Family and Medical Leave Act (“FMLA”).   Questioned whether an employer may delay designation of FMLA-qualifying paid leave as FMLA leave, or provide additional FMLA leave beyond the 12-week FMLA entitlement, the WHD opined that: (a) employers cannot let workers take paid sick time before tapping into their allotment of federally protected unpaid leave; (b) employers may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave; (c) once the employer has enough information to make this determination, the employer must, absent extenuating circumstances, provide notice of the designation within five business days (even if the employee would prefer that the employer delay the designation); and (d) if an employee substitutes paid leave for unpaid FMLA leave, the employee's paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

The opinion clarified Code of Federal Regulation section 825.700, which provides in relevant part that “[a]n employer must observe any employment benefit or program that provides greater family and medical leave rights to employees than the rights provided by the FMLA.”  The WHD noted that while an employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA, providing such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA.  From a practical standpoint, employers may still allow employees to utilize paid time off during an FMLA-qualifying leave, however, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

Employers should use this opinion letter as guidance in making FMLA designations.

For more information on this topic, please contact Rachel Yarch at 312/840-7029 or ryarch@burkelaw.com, or Alex Marks at 312/840-7022 or amarks@burkelaw.com.