Pension & Benefits News Employers cannot delay or expand FMLA designation, DOL opinion letter advises
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Tuesday, March 26, 2019

Employers cannot delay or expand FMLA designation, DOL opinion letter advises

By Pension and Benefits Editorial Staff

The Department of Labor has issued a new opinion letter addressing whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement. The letter explains that an employer "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."

Letter’s inquiry. The question arose in the context of an inquiry into whether employers could voluntarily permit employees to exhaust some or all paid sick (or other) leave prior to designating leave as FMLA-qualifying in order to "observe any employment benefit or program that provides greater family or medical leave rights to employees" under 29 CFR Sec. 825.700.

Prohibition on delaying designation. The letter explains that 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. When an employer determines that leave is for an FMLA-qualifying reason, the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement. Thus, the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.

Prohibition on expanding designation. In addition, nothing in the FMLA prevents employers from adopting leave policies more generous than the FMLA requires; however, employers may not designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. 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 that entitlement.

SOURCE: FMLA2019-1-A, March 14, 2019.

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