Can you allow an employee to take paid time off for leave that qualifies under the Family and Medical Leave Act but not designate it as FMLA leave? Recently, the Department of Labor (DOL) was asked for guidance on this very issue and, in opinion letter FMLA 2019-1-A, clearly answered no.

The Background

Under the FMLA, for specified medical and family reasons, eligible employees may take up to 12 weeks of unpaid leave (or 26 weeks of military caregiver leave) per year, during which time the employee’s job is protected. An employer may require (or give employees the option of substituting) available paid time off to cover unpaid FMLA leave. Many benefit plans provide employees with additional paid leave for medical (and other) reasons that the FMLA may also cover.

According to the letter, “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.” The DOL was ultimately asked whether it was permissible for an employer to delay designating FMLA-qualifying paid leave or to provide additional FMLA leave beyond the statutory entitlement.

The Opinion

The DOL ultimately concluded that employers may not allow employees to use paid time off to delay or expand the protections afforded by the FMLA.

First, the DOL noted an employer cannot delay designating FMLA-qualifying leave as such, regardless of whether the leave is paid or unpaid or the employee’s preference. The FMLA places responsibility on employers, not employees, to determine whether the requested leave is FMLA-qualifying. The employer must notify the employee of that determination, absent extenuating circumstances, within five business days of obtaining “enough information to determine whether the leave is being taken for a FMLA-qualifying reason.” Once an employer determines that an employee has requested leave for an FMLA-qualifying reason, neither the employer nor the employee may decline FMLA protection for that leave. Therefore, an “employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.”

The DOL next found that employers may not designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave, regardless of whether the leave is paid or not. Should an employee choose to use paid time off for FMLA-qualifying leave, the paid time off counts against the employee’s 12-week (or 26-week) FMLA entitlement.


  1. As noted in the letter, the conclusions in FMLA 2019-1-A conflict with the Ninth Circuit’s 2014 holding in Escriba v. Foster Poultry Farms, Inc., which held that an employee may decline FMLA leave even if the requested leave is FMLA-qualifying. Generally, courts are not required to follow DOL opinion letters; however, reliance on a DOL opinion letter protects an employer from liquidated damages in an FMLA case. In a situation like this – where a court and the DOL differ – employers should be cautious when taking action inconsistent with the DOL’s guidance.
  2. While this is an employer-friendly opinion, the opinion makes clear that the employer is responsible for determining whether an employee’s request for leave is FMLA-qualifying. Your human resource professionals, supervisors and managers must be trained to identify FMLA-qualifying leave requests, address those requests timely in line with the FMLA’s notice provisions, and ensure the leave time is designated properly as FMLA leave.