- Neither employers nor employees can decline to designate Family Medical Leave Act (FMLA)-qualifying leave as such, the U.S. Department of Labor (DOL) wrote in an opinion letter (FMLA2019-1-A) published Thursday.
- When an employer determines an employee needs leave because of an FMLA-qualifying reason, that leave must count toward his or her FMLA allotment, even if the employee requests otherwise. This means that employees cannot, for example, opt to take employer-provided sick or vacation time first; FMLA leave would have to run concurrently.
- DOL also made clear in its letter that while employers are free to adopt leaves policies more generous than the FMLA, they cannot extend the FMLA's protections beyond 12 weeks (or 26 weeks for military caregiver leave). The letter came alongside two others answering questions about the Fair Labor Standards Act's wage and recordkeeping requirements and the compensability of time spent participating in employer-sponsored community service programs.
DOL's position means that an employer may not allow employees to use paid sick leave, vacation or other types of leave instead of FMLA leave, even if that's what they say they prefer. Employers may require workers to run leaves concurrently, but "the employee's paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement," the agency said.
DOL noted that this stance puts it in conflict with the 9th U.S. Circuit Court of Appeals. In a 2014 opinion, Escriba v. Foster Poultry Farms, the court held that "an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection." Jeff Nowak, a shareholder at Littler Mendelson P.C., suggested on his FMLA Insights blog that employers in the 9th Circuit follow DOL's instructions and designate leave as soon as possible.
Once an employer is on notice that an employee needs leave for a reason that may qualify for FMLA protection, it must notify the employee of the FMLA designation within five business days, in addition to providing other notices. This means that training for managers — who often are the first to hear about such a need — is critical. Managers are a leading cause of employment law violations, experts say, and this latest opinion letter only underscores the importance of training and compliance.
Managers will need to understand the circumstances that can make an employee's leave FMLA-qualifying and how the life cycle of FMLA leave plays out. Employees usually trigger the process with a request, but they don't need to reference the FMLA or any other specific rights to do so. This means managers need to be familiar with the conditions that can qualify for protection. According to DOL's Wage and Hour Division, four scenarios qualify a worker for FMLA leave:
- The birth or placement of a child;
- The need to care for a spouse, child or parent who has a serious health condition (which includes "incapacity due to pregnancy and for prenatal medical care," according to DOL);
- The employee's own serious health condition (including "incapacity due to pregnancy and for prenatal medical care," says DOL), which renders him or her unable to perform the essential functions of the job; and
- Any qualifying need related to the fact that a spouse, child or parent is a military member on covered active duty or called to covered active duty status.
In light of this opinion letter, it's especially important that managers feel confident with this step of the FMLA process. Those likely to receive requests need to be able to recognize them and escalate them as needed.