In two recent Opinion Letters, the U.S. Department of Labor (DOL) concluded that employers may not delay designating FMLA leave, even at an employee’s request. General Counsel, business owners, and HR professionals in organizations covered by the FMLA should be aware that, once the employer knows that an eligible employee needs leave for an FMLA-qualifying reason, the employer should promptly inform the employee that the leave is FMLA leave.
In March, the DOL issued Opinion Letter FMLA2019-1-A (below) in which the DOL concluded that employers may not allow employees to use up paid leave before the employer designates the leave as FMLA leave.
Earlier this month, in Opinion Letter FMLA2019-3-A (below), the DOL confirmed that, even if a collective bargaining agreement provides for a delay in designating FMLA leave, the regulations, and the DOL, do not.
Within five (5) business days of learning of an employee’s need for leave, the employer must give the employee notice of his/her eligibility for FMLA leave and of any information that the employee must provide to help the employer determine if the need for leave is FMLA-qualifying. Absent extenuating circumstances, the employer must designate the leave as FMLA leave within five (5) business days of obtaining knowledge that an eligible employee needs leave for an FMLA-qualifying reason. See 29 CFR 825.300 and 825.301.
The DOL’s position is consistent with the FMLA regulations, which state, in part:
29 CFR 220(d): “Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA.”
29 CFR 300(d)(1): “When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances.”
29 CFR 301(e): “If an employer’s failure to timely designate leave in accordance with §825.300 causes the employee to suffer harm, it may constitute an interference with, restraint of, or denial of the exercise of an employee’s FMLA rights. An employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.” There is similar language in 29 CFR 300(e).
29 CFR 825.700(a) “[T]he rights established by the Act may not be diminished by any employment benefit program or plan.”
29 CFR 825.207(a): “Generally, FMLA leave is unpaid leave. However, under the circumstances described in this section, FMLA permits an eligible employee to choose to substitute accrued paid leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave. The term substitute means that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave. Accordingly, the employee receives pay pursuant to the employer’s applicable paid leave policy during the period of otherwise unpaid FMLA leave.”
If an FMLA-eligible employee is on leave (1) as a reasonable accommodation, (2) because of an injury or illness covered by workers’ compensation, (3) pursuant to an employer paid sick or disability plan, or (4) for some other reason AND the leave is FMLA-qualifying, the employer may (DOL presumably would say must) inform the employee that the leave is FMLA leave to run concurrent with the “other” paid or unpaid leave. In addition to compliance with the DOL’s position, it may make good practical business sense to run FMLA leave concurrent with other forms of leave. Once paid leave is exhausted, the leave typically becomes unpaid for any balance of FMLA leave remaining. Once FMLA leave is exhausted, the employer has more flexibility when making decisions about whether to grant additional leave.
If an employer and employee voluntarily agree to delay the designation of leave as FMLA leave (which is sometimes done for the benefit of employees), and the employee (1) is treated at least as well during the “delay” as the employee would have been treated under the FMLA, and (2) is then provided FMLA leave with all rights available under the FMLA, there may be a legitimate question about whether the delay in designating the leave as FMLA leave caused the employee any harm. If the employee does not suffer any loss in pay, benefits, eligibility for promotion, or any other loss, there may be a question about whether the delay is actionable as interference with the employee’s FMLA rights. I’m not encouraging any employer to disregard the DOL’s position. I’m merely suggesting that, from a risk management perspective, these are issues worth exploring. (Note, this bullet refers only to situations when both the employer and the employee truly want to delay FMLA leave).
As a reminder, if an employee needs more leave after exhausting FMLA leave, the employer should explore whether granting additional leave could be required as a reasonable accommodation under the ADA. The EEOC likely would say “yes” unless the employer can prove that providing additional unpaid leave would create undue hardship. Courts may view this differently, depending on your jurisdiction.
Keep in mind that, if an employee is receiving workers’ compensation benefits, employer-provided disability pay, or certain other forms of income replacement benefits during otherwise unpaid FMLA leave, the employer may allow, but may not require, the employee to also use PTO (see 29 CFR 825.207(d),(e)).
(This post is not legal advice. Consider consulting with a lawyer about specific situations.)