In a recent Opinion letter of the United States Department of Labor (U.S. DOL) (FMLS 2019-1-A, March 14, 2019), the U.S. DOL made clear that employers and employees cannot delay the start of Family Medical Leave Act (“FMLA”) leave. The Opinion was in response to a letter request which presented the question of whether it is permissible for an employer to delay the designation of FMLA-qualifying paid leave as FMLA leave or to provide additional FMLA leave beyond the 12-week FMLA entitlement.
First, the U.S. DOL explained that an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave, even if the employee would prefer that the employer delay that designation. 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. Further, the U.S. DOL noted that once the employer has enough information to make this determination, the employer must, absent extenuating circumstances, provide notice of the designation within five business days. In addition, the U.S. DOL explained that while nothing in the FMLA restricts employers from adopting more generous leave policies, an employer may not designate more than 12 weeks of FMLA leave (or 26 weeks for military caregiver leave) as FMLA-protected.
Employers who maintain a practice of allowing employees to delay FMLA leave to first use other forms of leave may want to consider revising those practices and policies to ensure compliance. While a U.S. DOL’s Opinion letter is not necessarily binding on courts, it can serve as a partial defense for employers who rely on them in good faith.