The U.S. Department of Labor’s Wage and Hour Division (“WHD”) recently issued an opinion letter regarding the designation of FMLA leave in the context of employees covered by collective bargaining agreements (“CBA”) with a union. This opinion letter provides helpful clarification on an issue that is often a source of confusion for employers (as well as for unions).

Overview

Earlier this year, the WHD advised that once an eligible employee communicates a need to take leave for a FMLA-qualifying reason, an employer may not delay the designation of FMLA-qualifying leave as FMLA leave (i.e., an employee cannot opt to preserve FMLA leave for future use). See WHD Opinion Letter FMLA2019-1-A (Mar. 14, 2019). In Opinion Letter FMLA2019-3-A, the WHD addressed whether an employer may delay designating paid leave as FMLA leave if the delay is permitted under the applicable CBA and is the employee’s preference.

The employer at issue was a local government public agency that provides CBA-protected accrued paid leave to its employees in accordance with the negotiated terms of the contract. According to the employer, its employees prefer to take CBA-protected accrued paid leave because under the state civil service rules and the CBA, time during such a leave is treated as part of an employee’s period of continuous employment that does not affect an employee’s seniority status, unlike unpaid FMLA leave.

Starting with general principles, the WHD reiterated that an employer may require, or the employee may elect, to “substitute” accrued paid leave to cover any portion of the of the unpaid FMLA entitlement period, meaning that any such paid leave will run concurrently with unpaid FMLA leave. In terms of the accrual of benefits such as seniority, the WHD advised that an employer must treat the accrual of benefits during paid leave the same as the accrual of benefits during FMLA leave – i.e., allow the accrual of seniority and other benefits during an unpaid FMLA leave if permitted for paid leave. While employers can adopt more generous leave programs by contract or policy, they must at a minimum comply with the FMLA and not reduce or deny FMLA benefits and protections.

The WHD ultimately concluded that based on the facts presented, the employer could not delay the designation of FMLA-qualifying leave even if the employer is obligated to provide job protection and other benefits equal to or greater than those required by the FMLA pursuant to a CBA or state civil service rules, and must treat the employee’s seniority accrual and status the same on FMLA leave that runs concurrently with CBA-protected accrued paid leave as it would if the employee took only protected accrued paid leave provided for by the CBA.

What This Means for Employers

Care should be taken in the negotiation and administration of collective bargaining agreements to ensure that employees’ leave rights are in accordance with the terms of the FMLA and other applicable leave laws.