The Federal Department of Labor (“DOL”) recently issued an Opinion Letter, FMLA 2019-1-A, concluding that employers must designate leave as FMLA leave once the employer knows that the leave is FMLA qualifying, rather than allow an employee to first use accrued paid time off. The DOL also concluded in the Opinion Letter that employers may not designate more than 12 weeks as FMLA leave (or 26 weeks of military caregiver leave). While we have typically urged clients to designate qualifying leave as FMLA leave even if the employee is not requesting FMLA leave and to not delay such designation, this is the first time the DOL has opined that employers must indeed make such designation, even if the employee would prefer to first use accrued paid time off and set aside the FMLA leave for later use.
The DOL’s recent Opinion Letter was a response to an employer requesting clarification as to whether it is permissible for an employer to allow employees to exhaust some or all of available paid sick (or other) leave prior to designating leave as FMLA-qualifying, even when the leave is “clearly FMLA-qualifying.” The DOL concluded that employers “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.” Rather, “[o]nce 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.” The Opinion Letter also states, “[o]nce the employer has enough information to make this determination, the employer must, absent extenuating circumstances, provide notice of the designation within five business days. Accordingly, the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.” (citation omitted).
What does the DOL Opinion Letter mean for employers? The DOL confirmed that employers may designate qualifying leave as FMLA leave even when the employee is not requesting FMLA leave, which is a question not addressed in the plain language of the FMLA statute or regulations. The Opinion Letter also tells employers that they must designate qualifying leave as FMLA leave, rather than allowing it to be saved for later use. It should be noted, however, that the DOL Opinion Letter is not binding authority and contradicts a 2014 decision in the Ninth Circuit, Escriba v. Foster Poultry Farms, Inc. (The Ninth Circuit decision is also not binding authority in Pennsylvania). Even though the DOL’s Opinion Letter is not binding authority, it has always been advisable for employers to promptly designate qualifying leave as FMLA leave, even if the employee is not requesting FMLA leave and/or would prefer to delay the use of FMLA leave.
You may also be wondering whether the Opinion Letter impact the rules pertaining to the use of paid time off concurrent with FMLA leave. The answer is no, but the analysis is nuanced. By statute and regulation, an employee may request that accrued paid time off be used concurrently with unpaid FMLA leave, and the employer can also require the same. 29 U.S.C. § 2612(d); 29 CFR § 825.207. If the employer does not require use of paid time off concurrent with FMLA leave, and the employee does not request the same, the employee may use accrued paid time off after the 12-weeks of FMLA is exhausted. Accordingly to the DOL’s recent Opinion Letter, what employers cannot allow is for employees to first use their accrued paid time off, in order to save FMLA hours for later use. This is because the DOL interpreted the FMLA to not permit delay in designation of FMLA-qualifying leave. With respect to employer policies requiring concurrent use of paid leave with FMLA leave, employers must be aware that this is a mandatory subject of collective bargaining for union employees. Such policies are viewed as advantageous to employers because employees are often reluctant to exhaust their accrued paid time off, including vacation days, making their use of FMLA leave more judicious (especially in the case of intermittent absences).
Lastly, the DOL Opinion Letter also confirms that employers may not designate more than 12 weeks (or 26 weeks of military caregiver leave) as FMLA leave in the applicable 12-month period, and that providing “additional leave” outside of the FMLA does not expand the employee’s 12 week (or 26-week) entitlement under the FMLA. Policies that purport to provide “additional FMLA” leave should be revised as FMLA leave is never expanded outside of the 12 week or 26 week entitlement. Additional unpaid leave for a medical condition, beyond the FMLA period, may be a reasonable accommodation under the Americans with Disabilities Act, but it is never an expansion of FMLA leave.