NEW GUIDANCE: DOL Clarifies FMLA Leave Use And Designation

An FMLA-related question that has long plagued employers has (finally) been answered. Are employers allowed to require employees take FMLA leave when the absence is for an FMLA-qualifying reason?

Every employer has faced this type of request … Joe employee needs to take a leave of absence to care for his ailing mother.  Joe is an FMLA-eligible employee (he’s worked for the company for more than 12 months and for at least 1,250 hours in the past 12 months).  Joe works in an office with more than 50 employees.  Finally, the reason for the leave is FMLA-qualifying (his mother has a serious health condition).

This should be an easy request to manage, but Joe has thrown a monkey-wrench into the request – he doesn’t want to take FMLA leave, he wants to just use his available paid sick leave and vacation.  Can the employer require Joe to take FMLA leave?

For a number of years, this has been a grey area for FMLA employers.  Then, in 2014, the 9th Circuit issued an opinion (in Escriba v. Foster Poultry Farms) wherein it held that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection” – implying that (at least in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) employers cannot require employees to use FMLA leave if they expressly refuse to take FMLA.

However, an opinion letter, issued on March 14, 2019, clarifies the DOL’s position on designating and taking leave under the Family and Medical Leave Act – bringing relief to most employers.

In this letter, the DOL has answered the following two questions:

  1. Whether an employer may delay designating paid leave as Family and Medical Leave Act (FMLA) leave?
  2. Whether an employer may permit employees to expand their FMLA leave beyond the statutory 12-week entitlement?

with one simple statement

An employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.

The DOL then explains that

An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave.  Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.

In other words, once an employer determines that leave is  for an FMLA-qualifying reason, the employee’s leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement.  As such, under the FMLA, employers are required to provide notice of the designation within five business days of determining that the leave is FMLA-qualifying.  “Employers may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.”

The DOL further explains that

An employer is also prohibited from designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.

Employers are permitted to (and, under the ADA may be required to) provide additional leave once the FMLA leave is exhausted, but providing such additional leave outside of the FMLA does not expand the employee’s 12-week (or 26-week) entitlement under the FMLA.  This is true when where an employee “substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.”

Take home for employers

 In light of this new opinion letter, employers should make sure that their HR Department and supervisors are aware of this new guidance and understand that employees do not get to choose whether or not an absence is covered by the FMLA. Instead, whenever an absence qualifies as FMLA leave, it must be designated as FMLA leave.