The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons. It is the employer’s obligation to designate leave as FMLA-qualifying. The employer must provide notice to the employee within five business days after the employer has information to determine that the leave is being taken for a FMLA-qualifying reason.
The FMLA also permits employers to adopt policies more generous than the FMLA. However, an employer may not designate more than 12 weeks of leave as FMLA-protected. Employers may require, or the employee may elect to “substitute” accrued paid leave to cover any part of the unpaid FMLA period. “Substitute” means that the paid leave will run concurrently with the unpaid FMLA leave.
On March 14, 2019, the United States Department of Labor issued Opinion Letter FMLA2019-1-A. The question presented was whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the 12-week entitlement.
The DOL opined that an “employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave . . . as FMLA leave.” This means that if an employee has PTO, vacation time or sick time, and prefers to take that paid leave before FMLA leave begins, an employer may not permit this. This is because an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave, even if the employee would prefer that the employer delay the designation. Such a delayed designation will be seen by the DOL as interfering with the FMLA. Additionally, an employer is prohibited from designating more than 12 weeks of leave as FMLA leave. If an employee substitutes paid leave for unpaid FMLA leave, the paid leave counts toward the 12-week FMLA entitlement.
The Opinion Letter contradicts the Ninth Circuit’s 2014 ruling in Escriba v. Foster Poultry Farms. In that case, the court held that workers may defer FMLA leave and take paid leave instead.
As a result of this FMLA opinion letter, employers should review their FMLA and paid leave policies for compliance and conformity. Employers should also review and monitor internal procedures for designating FMLA leave.