I periodically get asked whether an employer is required to designate FMLA-qualifying leave, especially when an employee asks to use paid sick leave or PTO in lieu of FMLA. This often happens when an employee is absent for only a couple of days, albeit a couple of FMLA-qualifying days, and going through the whole FMLA process will be time-consuming and burdensome for both employer and employee. In other cases, employees may want to “save” their FMLA leave or extend the time away from work for an FMLA-qualifying reason by using paid leave upfront before FMLA kicks in.
The FMLA regulations appear on first blush to answer this question by recognizing that “[o]nce an employer has acquired knowledge that the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee [that the leave is FMLA-qualifying and designate it as such].” 29 C.F.R. § 825.301(a). And, that is consistently my advice in virtually every state – if it is FMLA-qualifying, then designate it. This is based on the language of the regulations, but it is also almost always in the employer’s best interest to do so.
Notwithstanding this language, however, some employees have argued that the choice of whether to designate leave as FMLA is really up to the employee and at least one court of appeals (the Ninth Circuit) has agreed. The DOL weighed in on the issue in a March 14, 2019 opinion letter and it expressly disagrees with the “FMLA optional” approach. The opinion letter states the DOL’s unqualified position that “the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.” The upshot is that the obligation to designate an absence as FMLA-qualifying is not optional to the employee or employer.
As a corollary to this conclusion, the opinion letter also makes clear that employers are prohibited from designating more than 12 weeks of leave as FMLA leave. Of course, the DOL notes, employers must still observe any employment benefit program or plan that provides greater family or medical leave rights. The translation here is that employers can still provide additional leave when FMLA ends under other policies or as required by other laws (e.g., ADA or state laws), but the additional leave cannot be used to expand the FMLA. In other words, twelve weeks is twelve weeks even if some of the time is paid under or covered by another policy or state law.
The Bottom Line for Employers:
Employers now have some cover when they tell employees that FMLA is not optional. This may assist employers in administering the FMLA by removing any confusion on this point from the process. However, it will also require employers to consider how other benefit plans and programs will be applied when the reason for the leave is also an FMLA-qualifying reason. According to the DOL opinion letter, designation of FMLA-qualifying time away from work should be designated as FMLA leave, even if it is covered by other leave policies with more generous (paid leave) benefits. Finally, the opinion letter may be helpful on other fronts, such as in collective bargaining, if there is a request that employees be allowed to use other types of paid leave before FMLA is applied.
P.S. For all of you that have read this far, the ABA recently released its very helpful, annual 2019 Midwinter Meeting Report of 2018 FMLA cases. Please click here to access the report.