Overview: DOL Opinion Letter FLSA 2019-1-A provides that an employer cannot delay designation of leave as FMLA-qualifying or permit employees to extend FMLA leave beyond the statutory entitlement.
Details:
The U.S. Department of Labor (DOL) issued an opinion letter to discuss the practice by some employers of permitting employees to use available paid sick time or other paid leave prior to designating a leave as FMLA-qualifying, even when the leave is clearly FMLA-qualifying.
The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid job-protected leave per year for specified family and medical reasons. DOL regulations require employers to provide a written designation notice to employees within five business days after the employer has enough information to determine whether the employee needs to take leave for a FMLA-qualifying reason.
The DOL explained that 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. Further, employers may not induce employees to waive their prospective rights under the FMLA, nor may they choose whether an employee’s FMLA-qualifying absence is protected or unprotected by the FMLA. Therefore, when an employer determines that leave is for an FMLA-qualifying reason, the leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement, even if the employee would prefer that the employer delay the designation. Employees are still allowed to substitute paid leave for unpaid FMLA leave, but the paid leave counts towards the employee’s 12-week FMLA entitlement and does not expand that entitlement.
Employers are also prohibited from designating more than 12 weeks of leave as FMLA leave. While providing additional leave pursuant to an employer’s policy that provides greater rights is permissible, such additional leave cannot be designated as FMLA leave.
Action Required: Employers should review their procedures to ensure that FMLA designation notices are sent within five business days once the employer has enough information to determine that leave is FMLA-qualifying.
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