FMLA Designation is Not Discretionary for Either an Employer or an Employee

The U.S. Department of Labor (DOL) issued a new Opinion Letter on March 14, 2019 clarifying that an employer cannot delay the designation of FMLA-qualifying leave as FMLA leave. The question initially posed to the DOL was whether an employer may permit employees to use or exhaust some or all available paid time off (vacation, sick or other leave) prior to designating leave as FMLA-qualifying, even when the leave is clearly FMLA-qualifying.

Citing the regulations interpreting the FMLA, the DOL explained that when an FMLA-eligible employee makes known a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline or delay FMLA protection for that leave. Once the employer has enough information to determine whether a leave is being taken for a FMLA-qualifying reason, the employer has five business days to provide a written “designation notice” to an employee, given no extenuating circumstances are present. Failure to provide that notice may violate the employee’s FMLA rights. The DOL instructed that an employer cannot allow its employee to use paid leave or other leave before designating FMLA-qualifying leave as FMLA leave. The employer may require the employee to “substitute” accrued paid leave to cover any part of the FMLA unpaid leave period, but it will run concurrently with FMLA leave, not precede it.

This Opinion Letter clarifies the process that employers should follow regarding timely compliance with FMLA procedures. FMLA designations are required to go out promptly (within five business days) once an employer has enough information to determine that the leave is FMLA-qualifying.

How does this Opinion Letter impact employers?

  1. It brings needed clarity. Employers have long considered this issue a confusing area in FMLA administration. Employees do not have discretion regarding FMLA leave designation. When an absence qualifies as FMLA leave, the DOL requires the leave to be designated as FMLA leave.
  2. This Opinion Letter will be helpful to unionized employers and public-sector employers when developing work arrangements. It provides employers with increased leverage to negotiate provisions in collective bargaining agreements. Collective bargaining provisions and public-sector personnel policies frequently allow employees to use paid leave first, followed by FMLA leave. This Opinion Letter provides increased leverage to these employers to negotiate provisions in collective bargaining agreements. It also establishes policies requiring designation of FMLA leave at the earliest opportunity for all qualifying FMLA events.
  3. Employers can still be generous with their paid and unpaid leave programs. This Opinion Letter does not mean that an employer needs to be stingy with the paid and unpaid leave programs. The regulations clearly state “Nothing in FMLA supersedes any provision of State or local law that provides greater family or medical leave rights than those provided by FMLA.” Employers have discretion to provide additional leave when FMLA leave ends. As this Opinion Letter points out, however, an employer cannot simply designate the additional leave as FMLA leave once an employee has exhausted 12 weeks of FMLA leave. Although employers have discretion regarding generating leave policies, they still need to comply with FMLA regulations.

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