March 14, 2019 The Department of Labor (DOL) issued a new opinion letter (FMLA2019-1-A https://www.dol.gov/whd/opinion/FMLA/2019/2019_03_14_1A_FMLA.pdf) which states that employers can’t let workers take paid sick time before tapping into their allotment of federally protected unpaid leave, disagreeing with the Ninth Circuit's take that an employee is able to decline FMLA leave.
Finally, a little more clarification for employers and their Human Resources leaders! Having extensive experience in HR, I have seen my fair share of employees with absences that qualify as FMLA insisting the employer allow him/her to choose either FMLA leave or ordinary sick leave to cover an absence clearly covered by the FMLA. Now the DOL has HR’s back and in this letter provides an unequivocal direction that the employer must designate the leave as FMLA [29 C.F.R. 825.301(a)]and cites “once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave].”; “An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.”; and the DOL further states: “The employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation . . . [If] 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.”
An employee doesn’t get to choose whether or not an absence is covered by the FMLA. When any absence qualifies as FMLA leave, the DOL has made clear that the employer must designate the leave as FMLA leave.
The DOL opinion letter however doesn’t stop employers from providing greater family or medical leave rights than those provided by FMLA and there is nothing stopping employers from providing additional leave when FMLA ends [29 CFR 825.701(a)] however, you simply can’t designate the additional leave as FMLA leave once an employee has exhausted 12 weeks of FMLA leave. The DOL opinion letter states: “…if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts towards his or her 12-week (or 26-week) entitlement and does not expand that entitlement.”
Need FMLA Forms from the DOL? See below:
The notices/forms also can be accessed from this DOL web page.
Contact Rothmeyer | Rothmeyer to assist you with your leave of absence designations or concerns.