Vigilant Blog

News, trends and analysis in employment law, HR, safety & workers' comp

Mar 26, 2019

DOL says employers can’t delay designation of FMLA-qualifying leave

Leave Laws 

The U.S. Department of Labor (DOL) recently issued an opinion letter stating that employers must designate an employee’s leave as time off under the federal Family and Medical Leave Act (FMLA) if the leave is for an FMLA-qualifying reason. Vigilant previously reported that the Ninth Circuit Court of Appeals said an employee could decide to use non-FMLA leave (such as paid time off or state leave) for an FMLA-qualifying reason, and save the FMLA leave for later, as long as the employer’s policy allowed it (Escriba v. Foster Poultry Farms, Inc., 9th Cir, Feb. 2014). But the new guidance disagrees with Escriba, so employers shouldn’t rely on it anymore. The DOL’s new guidance still allows employers to run paid leave or state leave at the same time as FMLA leave when allowed by company policy or state law. But employers and workers may no longer choose to delay designating FMLA leave.
In the same opinion letter, the DOL also said that employers may not designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. In WHD Opinion Letter FMLA-67 (July 21, 1995) and WHD Opinion Letter FMLA-49 (Oct. 27, 1994), the DOL had previously said employers could offer employees FMLA leave without counting it against the 12-week limit, but the DOL has now rescinded those statements. Employers may still offer family or medical leave longer than 12 weeks under company policy. Also, state laws may offer greater family or medical leave rights than the FMLA. But now employers may not consider any family or medical leave taken beyond 12 weeks (or 26 weeks for military caregiver leave) as FMLA leave.
Tips: When employees ask for leave, be on the lookout for words that indicate the leave is for an FMLA-qualifying reason (they don’t have to say “FMLA” or any other magic words). You are legally required to provide certain notices once FMLA-qualifying leave is requested (even if FMLA leave is denied). See Vigilant’s Legal Guide, FMLA: Qualifying Events and Notice Requirements. Questions? Contact your Vigilant employment attorney. If you aren't a Vigilant member, inquire today about flat fee employment law advice for help with fmla and other tricky employment law issues.

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