In its September 10, 2019 Opinion letter, the Department of Labor (DOL) clarified employers are prohibited from delaying designating qualifying leave as FMLA leave, even if the delay complies with the leave provisions in the parties’ collective bargaining agreement (CBA) and the employee prefers that the designation be delayed. An employee requested the DOL’s opinion on their employer’s leave policies. The parties’ CBA provided employees with paid leave and job protection for certain medical and family reasons. Under the CBA, the employees were sometimes required to delay taking unpaid leave, including unpaid FMLA leave, until the employee had exhausted their CBA-protected accrued paid leave. Then the employer began requiring employees to substitute FMLA leave for accrued paid leave, which made their leave both FMLA leave and CBA-protected paid leave. The DOL ultimately approved of the employer’s practice of requiring FMLA-qualifying leave to be designated as FMLA leave. However, the DOL explained an employee on FMLA leave concurrent with CBA-protected leave is entitled to the same CBA-provided benefits as they would have received on CBA-protected leave, as to not discriminate against employees on FMLA leave.
The DOL emphasized once an employee has communicated a qualifying family or medical condition, neither the employee nor the employer can decline FMLA protection for the leave. If the CBA has policies providing employees with benefits during paid leave, they must also provide those benefits when they are substituting FMLA leave for paid leave.
Overall, if an employee qualifies for FMLA leave, while also qualifying for CBA-protected leave, their employer must designate the leave as FMLA leave but is required to provide the CBA benefits associated with paid leave. If an employee’s leave just qualifies as FMLA leave, the employer is only required to provide the employee the benefits the CBA provides for unpaid leaves of absences.
This opinion letter emphasizes the importance of investigating and designating qualifying leave as FMLA leave as soon as possible. Since supervisors are often the first to know of possible FMLA related conditions, they must have a working knowledge of FMLA requirements.
The attorneys at Fishel Downey regularly review FMLA policies and train employers in the application of the FMLA. If you have further questions about the overlap of CBA benefits and FMLA leave, or if you’d like to set up a training session for your staff, contact Fishel Downey.