DOL Opinion on FMLA Designation

Compliance, Employee Benefits, Property & Casualty

On March 14, 2019, the United States Department of Labor (DOL), Wage and Hour Division (WHD) issued an opinion letter regarding the Family and Medical Leave Act (FMLA) and an employer’s right to expand FMLA beyond the 12-week statutory limit.  This opinion letter is based on facts specific to one employer’s situation and should only be used by employers to gauge the Division’s stance on this particular topic.

The situation presented to the WHD involved employers that permit employees to exhaust paid time off prior to designating the required leave as FMLA.  Employers are relying on a provision in FMLA regulations that states:

“an employer must observe any employment benefit or program that provides greater family and medical leave rights to employees than the rights provided by the FMLA.”  29 C.F.R. §825.700

The question raised was whether this provision allows employers to delay the designation of FMLA qualifying leave or provide additional leave beyond the 12 weeks of FMLA. The WHD provides the opinion that employers may NOT delay the designation of FMLA-qualifying leave or designate more than 12 weeks as FMLA for the following reasons:

  • Employers are prohibited from delaying the designation of FMLA due to the fact that the regulations provide that neither the employee nor the employer may decline FMLA protection for leave once it is identified as FMLA qualifying. 29 C.F.R. 825.220(d).  When an employer determines that leave is for an FMLA qualifying reason the leave is protected under the FMLA and counts toward the employee’s FMLA entitlement. This would include leave due to workers compensation related injuries and disabilities that also qualify as “serious health conditions” under the FMLA regulations. Employers are required to provide a designation notice once the employer has enough information to determine the leave is FMLA qualifying, regardless of the employee’s wishes.
  • Employers are prohibited from designating more than 12 weeks (or 26 for military caregiver leave) as FMLA leave.  Employers are allowed to apply any benefit program the employer provides that would allow greater family or medical leave rights (Paid-Time Off, sick time, additional leave policies) but the additional leave would not be considered FMLA beyond the 12 weeks.  If the employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave would count toward the 12 week (or 26 week) entitlement.

Key Takeaway

It is important to note that this release from the federal government was an opinion and not a new regulation. This release is reflective of the current application of the law by the departments and how they are applying regulations in the case of formal inquiries.  Please contact your legal counsel for specific questions that may pertain to our organization.

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