On March 14, 2019, the U.S. Department of Labor’s Wage and Hour Division (DOL) issued an opinion letter addressing the DOL’s position on: (1) whether an employer can delay designating paid leave as Family and Medical Leave Act (FMLA) leave; and (2) whether an employer can expand an employee’s FMLA leave beyond the statutory 12-week (or 26-week) entitlement. Simply put, the DOL answered both in the negative.

The DOL opinion letter was in response to a request for an opinion as to whether an employer may delay the designation of FMLA-qualifying paid leave as FMLA leave and whether an employer may provide additional FMLA leave beyond the FMLA entitlement in the context of employers who voluntarily permit employees to exhaust some or all available paid sick (or other) leave prior to designating the leave as FMLA-qualifying, even when the leave clearly qualifies as FMLA.

Generally speaking, the FMLA provides eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave during a 12-month period for specified family and medical reasons, or up to 26 weeks to care for a covered servicemember. See 29 U.S.C. § 2612(a).

No Delay in Designating FMLA Leave

In the opinion letter, the DOL stated that an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave, even if the employee prefers that the employer delay designating the leave. Once 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. See 29 C.F.R. § 825.220(d) (“Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA”). Moreover, “[w]hen an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.” 29 C.F.R. § 825.300(d)(1).

No Expansion of FMLA Entitlement

In the opinion letter, the DOL further stated that an employer is prohibited from designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. Under the FMLA, the employer may require or the employee may elect to substitute accrued paid leave to cover any part of the unpaid FMLA entitlement period. See 29 U.S.C. § 2612(d)(2). “The term substitute means that the paid leave provided by the employer . . . will run concurrently with the unpaid FMLA leave.” 29 C.F.R. § 825.207(a) (emphasis added). According to the DOL opinion letter, “if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement."

Key Takeaway

This opinion letter clarifies the DOL’s interpretation of an employer’s responsibilities under the FMLA in that an employer cannot delay designating FMLA leave until an employee exhausts paid leave and an employer cannot expand the 12-week (or 26-week) FMLA entitlement.