03-27-2019
The U.S. Department of Labor (DOL) has issued an opinion letter advising employers that employees do not get to determine whether their leave is designated under the Family and Medical Leave Act (FMLA).In the opinion, an unnamed employer asked whether an employee could delay the onset of the 12 weeks allotted FMLA leave by first exhausting other paid/sick leave. FMLA permits up to 12 weeks of unpaid, job-protected leave per year for qualifying family and medical reasons. Employers may require or allow employees to use accrued paid vacation/sick days to cover part of their FMLA leave. However, the DOL made it clear that “[t]he employer is responsible in all circumstances for designating leave as FMLA-qualifying and giving notice of the designation to the employee.”
Employers are permitted to provide more generous leave policies than those required under the FMLA. However, employers cannot delay designating FMLA-qualifying leave as FMLA leave. Once an employee tells the employer of the need for leave, and that need meets FMLA criteria, then the leave must be designated as FMLA leave with all of its protections. Neither the employer nor the employee may decline FMLA protection for that leave. According to the DOL, employers also may not designate leave that goes beyond 12 weeks as FMLA. It should be noted FMLA regulations expressly provide that FMLA does not supersede state and local laws providing greater family or medical leave rights.