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DOL Says Employees Cannot Decline FMLA Leave When Absence is Covered by FMLA

On Behalf of | Mar 25, 2019 |

The U.S. Department of Labor (“DOL”) has issued Opinion Letter FMLA2019-1-A clarifying that neither an employer nor an employee may delay designating paid leave as Family and Medical Leave Act (“FMLA”) leave.

Background. 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. An employer may require, or an employee may elect, to apply available paid leave ( e.g., paid vacation or sick time) to cover any part of the unpaid FMLA period.

Covered employers are responsible for designating leave as FMLA-qualifying and provide a “designation notice” to the employee within five business days after the employer has enough information to determine that the leave at issue is being taken for an FMLA-qualifying reason. An employer’s failure to provide this notice when required may constitute interference with an employee’s FMLA rights.

While FMLA does not prohibit covered employers from adopting a more generous leave policy than what is required by the FMLA, employers may not designate more than 12 weeks of leave (or more than 26 weeks of military caregiver leave) as FMLA-protected.

FMLA2019-1-A. In FMLA2019-1-A, the DOL confirms that:

  • Once an eligible employee communicates the need to take FMLA-qualifying leave, neither the employee nor the employer may decline FMLA protection for that leave.
  • An employer may not delay the designation of FMLA-qualifying leave as FMLA leave, even if the employee would prefer that the employer delay the designation because, for example, the employee wants to delay FMLA leave until he has taken all of his paid leave.
  • Where an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts towards his or her 12-week FMLA entitlement and does not expand that entitlement.

The DOL’s position in FMLA2019-1-A directly conflicts with a 2014 decision from the Ninth Circuit Court of Appeals (in Escriba v. Foster Poultry Farms) where it determined that an employee could decline FMLA leave and use paid leave instead. Indeed, the DOL notes in FMLA2019-1-A that it “disagrees with the Ninth Circuit’s holding that an employee may use non-FMLA leave for an FMLA-qualifying reason and decline to use FMLA leave in order to preserve FMLA leave for future use.”

Employer Takeaway. In the wake of FMLA2019-1-A, covered employers must ensure that their supervisors have been properly trained on the steps required for the FMLA process.

FMLA2019-1-A is available by clicking here.