Don’t Delay on Designating FMLA Leave

A Department of Labor Opinion Letter recently clarified that:

Employers can’t delay the designation of FMLA-qualifying leave                                                                   

* Employers must notify employees of FMLA designation within five business days of getting information to make the determination; and                                                                                                                                                                                                                                                 

* Employers may not provide more than 12 weeks of federal FMLA leave.

Do you think you are being a generous employer by allowing your employees to use their accrued paid leave as additional FMLA-protected leave? Or by delaying the start of their FMLA leave by allowing them to use accrued paid leave first? Not so fast, because no good deed goes unpunished.

On March 14, 2019, the Department of Labor issued an opinion letter stating that employers cannot “delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks for military caregiver leave) as FMLA leave.” DOL reached this conclusion based on the FMLA regulation requiring employers to designate the leave and notify the employee within 5 business days of being made aware that the leave is for an FMLA-qualifying reason. The letter states, “[o]nce 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.”

Additionally, DOL concludes that employers may not expand an employee’s FMLA-protected leave beyond the statutorily capped 12 weeks (or 26 weeks for military caregiver leave). The employer can always grant additional leave, but that leave cannot have the job protections offered by the FMLA. DOL still agrees that an employee may decide to substitute paid leave for the unpaid leave offered under FMLA, but the paid leave will still count towards the employee’s 12-week FMLA entitlement. All is not lost for generous employers. Employers may still offer additional leave beyond the statutory entitlement. The caveat is that the leave cannot be designated as FMLA leave. If you have any questions about this alert or you would like to review your existing policies, please do not hesitate to contact us.

Contact info: Meredith S. Campbell Chair, Employment and Labor Group, Shulman Rogers mcampbell@shulmanrogers.com | T 301.255.0550 | F 301.230.2891

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