DOL States that Employers May Not Delay Designating FMLA Leave

DMEC StaffLegislative Updates

New DOL Opinion Letter – No Delaying Designating FMLA Leave, Even When A Collective Bargaining Agreement Provides Otherwise

By David S. Mohl

Jackson Lewis P.C.

On Sept. 10, 2019, the Department of Labor (DOL) issued an FMLA opinion letter stating that an employer may not delay designating paid leave as FMLA leave if the delay complies with a collective bargaining agreement (CBA) and the employee prefers that the designation be delayed.

The CBAs in question provided employees with job protected paid leave for certain family and medical reasons that could also be covered under the FMLA. Employees could elect (or in some situations were required) to use the paid leave before taking FMLA leave.

The Sept. 10 opinion letter follows the DOL’s Mar. 14, 2019, opinion letter providing that an employer may not voluntarily permit employees to exhaust some or all available paid sick (or other) leave prior to designating the leave as FMLA-qualifying.

While the Mar. 14 opinion letter did not specifically address when a CBA applies, the DOL, in its Sept. 10 opinion letter, makes clear that a CBA does not provide an exception to the DOL’s view: 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.

The DOL also reminded employers that they may adopt leave policies, including in CBAs, that provide more generous leave, as long as the leave policies comply with the FMLA. The issue raised in the new opinion letter is that permitting employees to delay FMLA leave does not comply with the FMLA.

The DOL, again, informs employers that once it has enough information to determine that an employee’s leave request qualifies under the FMLA, it must designate the leave as FMLA leave. As the DOL stated in the opinion letter, “This is the case even if the employer is obligated to provide job protection and other benefits equal to or greater than those required by the FMLA pursuant to a CBA or state civil service rules.”

Employers should also be aware of the FMLA’s limitations on requiring employees to substitute paid leave during FMLA leave.

Employers should ensure that their policies and practices do not permit or require employees to delay FMLA leave when there is sufficient information to designate the leave under the FMLA.

***This article originally appeared on the Jackson Lewis’ Disability, Leave & Health Management blog and was reposted on the DMEC website with their permission.***