JUST BECAUSE IT SOUNDS BETTER DOESN’T MAKE IT RIGHT: NEW US DEPARTMENT OF LABOR OPINION LETTER ON FMLA
March 18, 2019
The US Department of Labor (DOL) has released a new opinion letter on the Family and Medical Leave Act (FMLA). See: FMLA 2019-1-A. As per the Opinion, 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”. Employers justify this practice because it observes an employment benefit or program that provides greater family and medical leave rights than those provided by the FMLA under the 29 C.F.R. §825.700.
The question before the DOL was whether it was permissible for an employer to delay the designation of FMLA-qualifying paid leave as FMLA leave or to provide additional FMLA leave beyond the 12-week FMLA entitlement.
As a general rule, the FMLA entitles eligible employees of covered employers to take up to 12 or 26 weeks of unpaid, job-protected leave per year for specified family and medical reasons. The employer may require, or the employee may elect, to “substitute” accrued paid leave (e.g., paid vacation, paid sick leave, etc.) to cover any part of the unpaid FMLA entitlement period. Nothing in the FMLA prevents employers from adopting leave policies more generous than those required by the FMLA.
However, an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. 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. Accordingly, the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.
An employer is also prohibited from designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. Even though an employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA, providing such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA. Therefore, if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.
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