In a recent opinion letter, the U.S. Department of Labor (“DOL”) Wage and Hour Division clarified its position on two points: (1) an employer may not delay the designation of FMLA-qualifying leave as FMLA leave, and (2) an employer is prohibited from designating more than 12 weeks of FMLA leave (or 26 weeks for military caregiver leave).

The question posed to the DOL was whether it is 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, because some employers voluntarily permit employees to exhaust some or all available paid leave prior to designating FMLA leave.

What can we learn from this opinion letter?

  1. Do not delay the designation of FMLA-qualifying leave. It is the DOL’s opinion that 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. Therefore, if an employee requests to “delay” FMLA leave or to “not use” FMLA until a later point, and the leave is otherwise FMLA-qualifying, granting such an employee request runs counter to this DOL opinion letter. An employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.
  2. Do not designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. The DOL notes that 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. However, providing such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA. The DOL provides the example that if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts towards his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

This provides an employer with clear guidance on how it can respond when employees request that FMLA designation be delayed until after they use available paid leave. The full DOL opinion letter can be found here.

Source: Jackson Lewis