It’s Not Optional, It’s FMLA

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On March 14, 2019, the U.S. Department of Labor (DOL) released a new opinion letter addressing whether an employer may delay designating Family and Leave Act (FMLA) leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement by using paid leave before FMLA leave begins.

According to the letter, “some employers voluntarily permit employees to exhaust some or all available paid sick or other leave prior to designating leave as FMLA-qualifying, even when the leave is clearly FMLA-qualifying.”

The DOL opinion letter clearly states that an employer may not delay the designation of FMLA-qualifying leave nor designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. If an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward and runs concurrently with their 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

Specifically, the opinion letter states, “the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that it delay the designation.”

Tell Me About FMLA Leave

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. Employers may require, or employees may elect, to substitute accrued paid leave to cover any part of the unpaid FMLA entitlement period. Employers are required to designate eligible leave as FMLA-qualifying and provide employees with a written designation notice within five business days after the employer has enough information to determine the leave is for an FMLA-qualifying reason.

An employer is permitted to provide a leave policy that is more generous than the FMLA requires; however, it may not designate more than 12 weeks of leave (or more than 26 weeks of military caregiver leave) as FMLA-protected.

What About Substitute Leave?

In addressing the issue of “substitute,” the opinion letter defines the term under the FMLA as meaning “that the paid leave provided by the employer runs concurrently with the unpaid FMLA-designated leave.” The paid leave does not take the place of FMLA-leave, rather it gives the employees an opportunity to receive payment for the leave period (because FMLA is unpaid).

How the Opinion Letter Impacts Employers

As explained above, the opinion letter emphasizes that:

  • An employer may not delay the beginning of FMLA leave or designate more FMLA-protected leave than permitted by the statute.
  • 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. Employees cannot waive their rights under the FMLA and employers cannot induce them to do so.
  • When an employer determines that the leave is for an FMLA-qualifying reason, the leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement.
  • An employer cannot avoid or play ignorant when determining this leave. Once it’s FMLA, then it cannot be otherwise.

Want to Know More?

ThinkHR customers can log into Comply to learn everything they need to know about FMLA; get checklists, forms, and resources in an employee leave toolkit; get linked to federal and state-specific protected leave regulations; and watch a webinar on avoiding leave mistakes.

About Samantha Yurman, JD

Samantha Yurman is one of ThinkHR’s legal editors. She is a licensed attorney in California and Florida with over 16 years of experience researching and analyzing human resources legislation and law. Samantha uses her expertise to translate highly technical legal topics into usable information for our clients.

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