In an opinion letter issued earlier this week, the Department of Labor addressed whether an employer may delay designation of FMLA leave if its collective bargaining agreement (CBA) with the union allows employees to wait to use their FMLA leave until after exhausting their CBA-protected leave. The government agency making the inquiry premised its question on its own CBA, which protects the seniority rights of employees who take medical or family leave for certain reasons. Their employees often prefer to use paid leave first, delaying the use of FMLA leave.

In line with an opinion letter issued earlier this year, the DOL answered the question “no.” Leave may not be delayed. Once the employer learns an eligible employee’s requested leave is protected by the FMLA, the employer must designate it as FMLA leave even if the employee requests that designation be delayed pursuant to the CBA. Neither the employer nor the employee can decline FMLA leave.

Employers may allow or require employees to substitute paid leave for unpaid leave, however. Substituting leave means taking the paid leave and FMLA concurrently. In that case, the employer must provide the employee whatever benefits it provides employees taking the CBA-protected paid leave. In the example before it, the DOL explained that because employees continue to accrue seniority when taking CBA-protected leave, employees should continue to accrue seniority during the duration of their concurrent leave. Failure to do so would constitute unlawful interference.

Although this opinion letter focuses on employees and employers party to a CBA, it provides useful reminders to all employers concerning their obligations under the FMLA. Here are the key takeaways:

  1. An employer cannot delay designating FMLA-qualifying leave as FMLA even if the employee asks the employer to do so.
  2. Failure to notify the employee of her rights under the FMLA would result in violation of the FMLA’s five-business day notice requirement, which may constitute unlawful interference.
  3. Employers must provide the same benefits (with exception to group health care) to employees taking unpaid FMLA leave as they would employees taking other types of unpaid leave, such as a leave of absence. For example, if your leave policy permits employees taking an unpaid leave of absence to accrue PTO, you must permit employees taking unpaid FMLA to accrue PTO. If your leave policy does not permit employees taking an unpaid leave of absence to accrue PTO, an employee taking unpaid FMLA is not entitled to accrue PTO.
  4. Under federal law, employers may require employees to take paid leave concurrently with FMLA leave. While the two types of leave overlap, the employer must provide the employee all rights she would be entitled to while on paid leave.

You can find a copy of the DOL’s opinion here.