On March 14, 2019, the Acting Administrator of the Wage & Hour Division (WHD) of the US Department of Labor (DOL) issued an opinion letter taking the position that employers cannot allow employees to exhaust paid sick and other leave before designating leave as FMLA and having it count against their 12- or 26- week entitlement. WHD Opinion Letter FMLA 2019-1-A (Mar. 14, 2019).

The requestor of the opinion letter represented that some employers “voluntarily permit[ ] employees to exhaust some or all available paid sick (or other) leave prior to designating leave as FMLA-qualifying, even when the leave is clearly FMLA-qualifying.” Employers justify this practice by relying on 29 C.F.R. § 825.700, which provides in relevant part that “[a]n employer must observe any employment benefit or program that provides greater family and medical leave rights to employees than the rights provided by the FMLA.” The requestor asked whether it is indeed permissible under this provision for an employer to delay the designation of FMLA-qualifying paid leave as FMLA leave or to provide additional FMLA leave beyond the 12-week FMLA entitlement.

The Acting Administrator observed that the 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. The employer may require, or the employee may elect, to “substitute” accrued paid leave (e.g., paid vacation, paid sick leave, etc.) to cover any part of the unpaid FMLA entitlement period.

According to the regulations, the employer is responsible in all circumstances for designating leave as FMLA-qualifying and giving notice of the designation to the employee. The regulations expressly require employers to provide a written “designation notice” to an employee within five business days — absent extenuating circumstances — after the employer “has enough information to determine whether the leave is being taken for a FMLA-qualifying reason.” The Acting Administrator noted that failure to follow this notice requirement may constitute an interference with, restraint on, or denial of the exercise of an employee’s FMLA rights.

The Acting Administrator acknowledged that nothing in the FMLA prevents employers from adopting leave policies more generous than those required by the FMLA. However, citing case law for the principle that “a plaintiff cannot maintain a cause of action under the FMLA for an employer’s violation of its more-generous leave policy,” he opined that “an employer may not designate more than 12 weeks of leave—or more than 26 weeks of military caregiver leave — as FMLA-protected.”

Based on this background, the Acting Administrator concluded that an employer “may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA 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. Accordingly, when an employer determines that leave is for an FMLA-qualifying reason, the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement. Once the employer has enough information to make this determination, the employer must, absent extenuating circumstances, provide notice of the designation within five business days. It follows that “the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.”

For the same reasons, the Acting Administrator determined that an employer is also prohibited from designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.

Of course, “[a]n employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA.” But providing such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA. Therefore, 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.

In issuing the Opinion Letter, WHD rescinded any prior statements in previous opinion letters that are inconsistent with this opinion. See WHD Opinion Letter FMLA-67, 1995 WL 1036738, at *3 (July 21, 1995); WHD Opinion Letter FMLA-49, 1994 WL 1016757, at *2 (Oct. 27, 1994).

This Opinion Letter reinforces the importance of designating FMLA leave from the very beginning, and offers support to employers dealing with employees who may try to extend their leave entitlement. In applying the Opinion Letter’s principles, employers must also be mindful of state family and medical leave laws that may be different, and of employee rights to extended leave as a reasonable accommodation under the Americans with Disabilities Act and similar state laws.

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