USDOL Publishes FMLA Opinion Letter Clarification - American Society of Employers - Michael Burns

USDOL Publishes FMLA Opinion Letter Clarification

The U.S. Department of Labor (DOL) issued an Opinion Letter clarifying how employers must go about allowing an employee to use other time off (paid or unpaid) in conjunction with the Family and Medical Leave Act (FMLA) requirements.DOL logo

For example - An employer, who wishes to provide additional time off, allows an employee to exhaust their sick or vacation time before using their FMLA leave for a qualifying leave that would extend beyond the 12 weeks required by law.  Is this permissible under the FMLA?

The DOL says no, it is not. In the new Opinion Letter issued March 14, 2019 (FMLA2019-1-A), the DOL states once an eligible employee communicates that he/she has a need to take leave that is covered by the FMLA, “neither the employee nor the employer may decline FMLA protection for that leave.” This would also apply to any qualified FMLA leave.

Employers should keep in mind that what is being called out here is not an employer being more generous than the FMLA, but an employer that tries to designate more leave as FMLA-protected than the law permits.

The Opinion Letter responded to a group of employers erroneously relying on 29 CFR 825.700. The regulations read that 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.” The employers in question asked if it was proper to interpret this to mean they could delay the designation of FMLA-qualifying paid leave as FMLA leave or to provide additional leave beyond the 12-week FMLA entitlement (26 weeks military caregiver leave).

The DOL agreed that the employer could be more generous in terms of their leave benefits – paid or unpaid. However, they could not adopt “leave policies more generous than those required by the FMLA…as FMLA protected.” The delaying of the designation of FMLA leave by either the employer or the employee is illegal. The designation of more than 12 weeks (26 weeks military caregiver) FMLA protected leave is also illegal (29 CFR 825.700).

This Opinion Letter seems to clear up a somewhat confusing area of FMLA compliance by stating that it is not up to the employee or employer to start the FMLA clock. It starts when a qualifying event occurs, not when an employee may want to designate it so. The Opinion Letter also runs contrary to a 2014 Ninth Circuit Court ruling that held the employee determines whether they will use the FMLA leave now or save some of it for later.

 

Additional ASE Resources
Family and Medical Leave Act – This course provides human resource professionals, managers, and supervisors with the knowledge and resources to recognize and administer FMLA in an effective and easy manner.  The next course is being held Wednesday, May 15th in Livonia.  To learn more or register click here.

Managing Leaves of Absence – The purpose of this training is to understand how to control leaves of absence in compliance with complex requirements of the FMLA, ADA, HIPAA, COBRA, Workers' Compensation, Pregnancy, and discrimination laws.  The next course is being held Wednesday, June 12th in Livonia.  To learn more or register click here.

Intermittent FMLA - The purpose of this training is to expand upon basic FMLA knowledge and focus more specifically on legally-compliant administration of intermittent FMLA leaves of absence.  The next course is being held Wednesday, June 12th in Livonia.  To learn more or to register click here.

ASE Hotline – ASE members have access to the ASE Hotline for complex HR questions that arise on any given day, including questions on FMLA.

 

Sources: HR Source newsletter. US Department of Labor FMLA2019-1-A(3/14/2019); U.S. DOL States that All FMLA-Qualifying Absence Must Be Designated as FMLA. 3/19/2019. CCH HR Answers Now – Wage and Hour Rules – New opinion letters discuss FMLA, FLSA issues (3/19/2019). Law360 4 FMLA Scenarios That Can Trip Up Employers (3/22/2019)

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