Any employer subject to the Family Medical Leave Act (“FMLA”) should be aware of the opinion letter the U.S. Department of Labor issued on March 14, 2019 regarding designation of FMLA leave.
The FMLA provides certain employees with up to 12 weeks of unpaid leave per year for certain FMLA qualifying reasons. This job-protected leave was created to help employees that require leave for certain family and medical reasons. The FMLA allows the employer to require, or for the employee to elect, to substitute any type of accrued paid leave (such as paid sick leave, paid vacation, etc.) to cover any portion of the unpaid FMLA leave period.
However, what if the employer wants to delay designating the employee’s leave as an “FMLA qualifying” leave in an effort to first allow the employee to exhaust all of his or her paid leave? Conversely, what if the employer sought to provide the employee with additional FMLA leave beyond the 12-weeks statutorily provided?
These were the questions answered by the DOL’s opinion letter.
The DOL made clear that once an employee communicates a need to take a leave for an FMLA qualifying reason, and the employer determines the leave is for an FMLA qualifying reason, neither the employer nor the employee may designate the leave as anything other than FMLA leave. Further, the DOL reiterated the requirement that as soon as the employer has enough knowledge or information to make the decision the employee’s leave is for an FMLA qualifying reason, the employer has five business days to provide notice to the employee the leave is being designated as FMLA leave.
The opinion letter also clarified that an employer cannot delay designation, even if the employee requests, or would prefer, the delay. The DOL specifically mentioned its disagreement with the Ninth Circuit Court of Appeal’s decision in Escriba v. Foster Poultry Farms, Inc. where the court held that an employee may use non-FMLA leave (such as PTO or paid vacation) for an FMLA-qualifying reason, while declining to use the unpaid FMLA leave, in an effort to preserve it for future use. See 743 F.3d 1236, 1244 (9th Cir. 2014).
Additionally, the DOL clarified that an employer is prohibited from designating more than 12 weeks (or 26 weeks if military care-giver leave) as FMLA leave. The letter did note that an employer is required to adhere to any employment benefit program or plan that provides greater leave rights than the FMLA to employees, but that those benefits do not expand the employee’s 12 week FMLA leave entitlement.
The takeaway from the DOL’s opinion letter is neither the employer nor the employee can change the designation of FMLA leave if there is an FMLA qualifying reason. Once the employer has enough information to designate the leave as FMLA qualifying, any leave (whether already initiated or not) is included in the 12 week period. Therefore, if the employer requires, or an employee wishes to use, any non-FMLA leave, it will run concurrently with his or her FMLA leave, and the employee’s FMLA leave cannot extend beyond 12 weeks.