DOL Says FMLA Leave Runs Concurrently with Paid Leave

The U.S. Department of Labor ("DOL") has issued Opinion Letter FMLA2019-3-A, which confirms that the terms of a leave policy provided under a collective bargaining agreement ("CBA") cannot supersede the requirements of the Family and Medical Leave Act ("FMLA"), even if the CBA is more generous. FMLA2019-3-A reinforces guidance the DOL provided in a previous opinion letter (i.e., DOL FMLA2019-1-A, see the Alert from March 21, 2019) that neither an employer nor an employee may delay designating paid leave as 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 leave and providing a "designation notice" to the employee within five business days after the employer has enough information to determine that the leave at issue is FMLA-qualifying leave. An employer's failure to provide this notice when required may constitute interference with an employee's FMLA rights.

In March 2019, the DOL released DOL FMLA2019-1-A, which confirmed 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.
  • When 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 period.

Facts.  The employee requesting the DOL's opinion in this matter explained that their employer had implemented a recent leave policy change requiring its employees to substitute FMLA leave for accrued, CBA-protected paid leave. However, the terms of the CBA which governed the parties' employment arrangement permitted employees to delay the use of FMLA leave until after any available paid leave had been used. As a result, the change to the employer's policy meant that, contrary to what the CBA provided, the employee's CBA-protected paid leave would run concurrently with FMLA leave.

Furthermore, the employee's use of FMLA leave under the employer's revised leave policy meant that the employee's accrual of seniority would cease during the leave period. In response, the employee asked the DOL to confirm whether the employer must designate FMLA-eligible leave as FMLA leave even when the employee would prefer to delay such designation.

Opinion Letter FMLA2019-3-A. The DOL reiterated that once an employer is given notice of the qualifying circumstances relating to the employee's request for leave, the FMLA mandates the employer designate the leave as FMLA leave even if the CBA requires, or an employee prefers, a delay.

The DOL's opinion further confirmed that with respect to the employee's seniority accrual:

  1. an employee's entitlement is determined by the employer's established leave policy;
  2. if the employer provides for the accrual of seniority under a paid leave policy, then it must permit the accrual of seniority during any portion of FMLA leave that is substituted for paid leave; and
  3. denying the seniority accrual would amount to interference with the employee's FMLA rights.

In the instant case, the DOL confirmed that the employer had appropriately required the employee's leave be designated FMLA leave at the outset rather than allowing the employee to delay it until after exhausting the accrued, CBA-protected paid leave. However, the DOL further explained that because the employee's CBA paid leave did not affect the employee's seniority status, any unpaid FMLA leave also cannot negatively affect the employee's seniority status. Therefore, the DOL determined that the established policy of providing accrued seniority during paid leave must also be applied to the employee's paid or unpaid FMLA leave.

FMLA2019-3-A is available at: https://www.dol.gov/whd/opinion/FMLA/2019/2019_09_10_3A_FMLA.pdf