Richardson, Whitman, Large & Badger

DOL:  EMPLOYERS MAY NOT DELAY DESIGNATION OF FMLA LEAVE

By Eric J. Uhl / March 29, 2019

In a March 14, 2019, opinion letter, FMLA2019-1-A, the United States Department of Labor (“DOL”) clarified that an employer may not allow an employee to take paid time off for a reason that qualifies as leave under the Family and Medical Leave Act (“FMLA”) without designating the leave as FMLA leave, even if the employer and the employee want to do so.
 
As a reminder, under the FMLA, eligible employees may take up to 12 weeks (or up to 26 weeks for military caregiver leave) of unpaid leave in a 12 month period for certain medical and family requirements.  An employee who goes out on FMLA-qualifying leave is entitled to reinstatement and other job protections.  Employers may require or permit employees on FMLA leave to use available paid time off during the period of unpaid FMLA leave.  Under Maine law, eligible employees may take up to 10 weeks of qualifying family and medical leave in a two year period.
 
In the opinion letter, the DOL addressed the question of whether it was permissible for an employer to permit employees to exhaust some or all of the employees’ available paid sick leave or other paid time off before the employer designates the leave as FMLA leave—even when the reasons for the leave clearly qualify as FMLA leave (a practice that ostensibly is for the benefit of employees). The DOL said no:  employers may not permit employees to use paid time off to delay or expand the employees’ period of FMLA qualifying leave.
 
The DOL stated that an employer may not delay designating leave as FMLA leave, regardless of whether the employee requests the opportunity to use available paid time off first.  The DOL emphasized that employers must determine whether the requested leave qualifies as FMLA leave.  If so, the employer has the responsibility of notifying employees of the designation within five days of obtaining enough information to make the designation (absent extenuating circumstances)—and the period of FMLA leave must commence when the employee goes out on leave, and not later.
 
Therefore, the DOL concluded, an “employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.”
The DOL also stated that an employer may not designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) in a 12 month period as FMLA leave.  An employee may choose to use, or an employer may require the employee to use, paid leave time during the FMLA-qualifying leave, but the paid time is concurrent with the FMLA leave and counts toward the employee’s 12 (or 26) week FMLA leave entitlement.  Employers may provide employees with additional time off, but they cannot designate more than 12 (or 26) weeks as FMLA leave in a 12 month period.
 
The FMLA continues to present unique challenges to employers under these and many other circumstances. Be sure to let us know if we can assist you with your FMLA related leave questions. 
 
 
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