The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) released its Opinion Letter FMLA2019-1A on March 14, 2019 advising employers (1) that they cannot delay designating qualifying leave as Family Medical Leave Act (FMLA) leave; and (2) that employers cannot designate more than 12 weeks of leave per year as FMLA leave (26 weeks per year if the leave qualifies as military caregiver leave under the Act).
Under FMLA covered employers must give eligible employees up to 12 weeks of leave per year for qualifying medical or family reasons. This leave is job-protected and benefit-protected but unpaid. In practice, many employers have permitted eligible employees to tap available paid leave (such as vacation or sick time) before designating FMLA leave and starting the 12-week annual maximum clock ticking—a practice previously endorsed by the Ninth Circuit Court of Appeals in Escriba v. Foster Poultry Farms Inc. (2014). In Escriba, the court allowed that an employee could decline to begin to use available FMLA leave until the employee exhausted leave available under other employer policies.
This practice—and the Escriba holding—has now been specifically disapproved by the March 14th DOL opinion letter. That letter provides:
“…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…Once 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.”
Thus, under the Opinion Letter even if the employer and the employee both desire to delay the start of an FMLA-qualifying leave while an employee utilizes other accrued paid leave, this is not an acceptable practice. Note that although the DOL opinion letter is considered persuasive authority it does not overturn Escriba or any other judicial precedent.
The DOL opinion letter also prohibits employers from designating more than 12 weeks (26 for military caregiver) as FMLA leave but allows that employers can have employment benefit programs that provide greater leave rights to employees than those established by the FMLA. The letter clearly provides that these expanded employee benefit schemes do not expand leave entitlement or other protections under the FMLA:
“Therefore, 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 the entitlement.”
The “entitlement” under FMLA is the job and employee benefit protection under the statute. In practice, many employers subject to FMLA have required employees to exhaust paid vacation and sick leave concurrently with FMLA leave, and for those employers, this opinion letter will not represent a substantial change. However, any employer subject to FMLA who may have a policy or practice of permitting employees to first use paid leave accrued for vacation, sick time, or PTO before designating FMLA leave should re-examine their policies to consider the effect of this Opinion Letter. In all cases, employers subject to FMLA need to be mindful of the requirements for designation of leave as FMLA.
While courts are not required to defer to DOL Opinion Letters, an employer’s reliance on a DOL Opinion Letter may give the employer the defense in a subsequent lawsuit that it was acting in good faith reliance on the Opinion Letter when making the FMLA decisions.
Are you struggling with FMLA issues? Contact the employment lawyers at Drewry Simmons & Vornehm LLP.