The Department of Labor (DOL) has issued an opinion letter in an effort to clear up some confusion on the designation of leave under the Family Medical Leave Act.
The question presented to the DOL was whether an employee could ask an employer to designate FMLA-qualifying leave as some other form of leave (e.g. sick leave or vacation leave) before the leave began counting against their time allowed under the FMLA. This would permit an employee to exhaust all other leave in order to save their FMLA leave for later use.
In the letter dated March 14, 2019, the DOL stated once and for all that employers must designate leave as FMLA leave once an eligible employee communicates a need to take leave for an FMLA-qualifying reason. As soon as an employer has enough information to determine the leave qualifies for FMLA protection, the employer must provide notice of the designation within five business days. This letter directly contradicts the Ninth Circuit Court of Appeals decision in Escriba v. Foster Poultry Farms, Inc. 743 F.3d 1236 (9th Circuit, 2014) and puts employers on notice that they must begin designating all qualifying leave as FMLA leave. Policies that allow an employee to delay using FMLA leave until other paid leave is exhausted violate the FMLA according to the DOL.
This opinion letter does not affect a policy which requires employees to take paid leave concurrently with FMLA leave. In the case of Allen v. Butler County Comm’r, 331 Fed Appx. 1239 (6th Circuit, 2009) the Sixth Circuit Court of Appeals held that an employer may require an employee to take sick leave or vacation leave concurrent with their FMLA leave. Employers may also require an employee to adhere to their sick leave policies not inconsistent with the FMLA even though their sick leave is also counting towards their FMLA entitlement.
The DOL’s opinion letter also serves as an opportunity for employers to review their obligations under the FMLA. Employers are reminded that only employees who have been employed for one full year (12 months working at least 1,250 hours during those 12 months) are eligible for FMLA leave. Eligible employees are entitled to twelve weeks of leave in a twelve-month period if they or a family member have a serious health condition. These twelve weeks may be taken in one block of time, or intermittently as needed and when medically necessary. Employers are encouraged to carefully scrutinize requests for FMLA leave for eligibility of the employee and sufficiency of the information provided with the request for leave.
If you need assistance in understanding how this news impacts your business, please contact Fishel Downey at info@fisheldowney.com by email or phone at (614) 221-1216.