Earlier this year, the U.S. Department of Labor (DOL) Wage and Hour Division (DOL) issued an opinion letter that addressed the Family and Medical Leave Act (FMLA). DOL has the authority to issue opinions examining how FMLA applies in specific circumstances in response to questions presented by an individual or entity. DOL was asked whether an employer may delay designating leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory 12-week (or 26-week for military caregivers) entitlement. The question arose because some employers delay designating leave as FMLA-qualifying and allow their employees to exhaust other available paid time off before making the designation.

In FMLA2019-1-A, DOL responded that employers are prohibited under 29 C.F.R. § 825.220 from delaying a designation of FMLA-qualifying leave as FMLA leave. Once an employer makes a determination that leave is for an FMLA-qualifying reason, that employer is required to make the designation and provide notice of the designation to the employee requesting leave within five business days. The qualifying leave is FMLA-protected and counts towards the employee’s FMLA 12-week (or 26-week) entitlement. FMLA leave designated as such cannot be delayed by paid time off thereafter, even if the employer and employee would both prefer to delay it.

DOL also noted that, under 29 C.F.R. § 825.700, an employer “must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA.” This means that an employee may substitute paid leave for unpaid FMLA leave, but the paid leave must count toward his or her 12-week (or 26-week) entitlement, rather than expand the length of the entitlement.

For more information about FMLA, including eligibility and coverage, applicable laws and regulations, or to access online forms, visit this webpage on the DOL website.


*OSBA wishes to thank Capital University Law School student and OSBA intern Gamaliel Narvaez for his contributions to this article.

Posted by Jennifer A. Hardin on 7/5/2019