On March 14, 2019, the U.S. Department of Labor, Wage and Hour Division (“DOL”) released an opinion letter clarifying the DOL’s position on designating and taking leave under the Family and Medical Leave Act (“FMLA”). Specifically, the DOL stated that employers cannot delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks for military caregivers) as FMLA leave. This opinion is at odds with a 2014 Ninth Circuit ruling.
The Law
The FMLA grants eligible employees of covered employers up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons, or up to 26 weeks to care for a family member who is a covered servicemember. Employees may choose, or employers may require employees, to substitute accrued paid time off for FMLA leave. This means that the paid leave provided by the employer will run concurrently with the unpaid FMLA leave.
The Opinion Letter
The opinion letter reiterated that when an employer determines that a leave qualifies for FMLA, the employer must notify the employee of the FMLA status within five days. Ultimately, the DOL clarified that an employer may not permit employees to use other available paid leave instead of or before taking FMLA leave.
The opinion letter also tackled the issue of whether an employer may designate FMLA leave beyond the 12-week entitlement (or 26 weeks with respect to military caregivers). Employers are prohibited from doing so according the DOL. This does not mean, however, that employers cannot or should not allow employees to take additional unpaid or paid leave. It just means that the FMLA leave entitlement may not be expanded by paid leave.
Opinion letters are issued by the DOL to help employers and employees understand and comply with federal labor laws.