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Department of Labor Provides Opinion on FMLA Leave

In March, 2019, the Department of Labor ("DOL") released an opinion letter on Family and Medical Leave Act (“FMLA”) leave addressing certain situations in which employers have delayed the start of FMLA leave or provided additional FMLA leave beyond the 12-week FMLA entitlement.


Some employers have permitted their employees to exhaust their accrued sick leave or paid time off prior to designating their leave as FMLA-qualifying when the leave is clearly FMLA-qualifying from the beginning. Additionally, some employers that have benefit programs with greater leave rights than under the FMLA have provided FMLA leave to employees beyond the 12-week entitlement. The DOL's opinion letter addresses both of these situations.

DOL Opinion Summary

An employer may not delay the start of 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 or delay FMLA protection for that leave. Therefore, when an employer determines that leave is for an FMLA qualifying reason, the leave is FMLA protected and immediately counts toward the FMLAleave entitlement of 12 weeks, even if the employee would prefer that the employer delaythe designation of FMLA leave.

An employer may not designate more than 12 weeks of leave as FMLA leave. An employer may adhere to any employment benefit program that provides greater than 12 weeks family/medical leave, but any leave greater than 12 weeks, provided by the employer, must be provided outside of the FMLA leave and cannot expand the employee's 12-week entitlement under the FMLA. Additionally, if an employee substitutes paid leave provided by the employer for unpaid FMLA leave, that employer-provided paid leave counts toward the employee's 12-week FMLA entitlement and does not expand the 12-week FMLA entitlement.

© 2007-2020 Hill Ward Henderson, All Rights ReservedNational Law Review, Volume IX, Number 109


About this Author

Al Ward Executive Compensation Hill Ward Henderson

Al is Co-Chair of the firm's Executive Compensation & Employee Benefits practice. Al is recognized throughout the professional community for his depth of experience and knowledge in the employee benefits area. Prior to entering the practice of law, Al was an actuarial and employee benefits consultant for over eight years.

Al has focused for over four decades on executive compensation, employee benefits, trusts and taxation. He represents many clients including publicly traded and privately held, taxable or tax-...

Kirsten Vignec Employee Benefits Attorney HIll Ward Henderson

Kirsten is a Shareholder in the firm's Corporate & Tax Group and practice co-chair of the Executive Compensation & Employee Benefits Group. Kirsten’s practice involves employee benefit matters associated with the design and ongoing administration of executive deferred compensation plans, welfare benefit plans, Section 401(k) plans, profit sharing plans, and pension plans. Kirsten represents tax-exempt entities, for-profit, private, and publicly-traded companies.

Kirsten represents clients before the IRS, DOL, and the PBGC with respect to employee benefits matters.

She is a member of the Tax Sections of The Florida Bar and the American Bar Association, as well as the State Bar of California and the District of Columbia Bar.

Away from the office, Kirsten enjoys travel, reading, and spending time with her husband and children.

Melanie Hancock Brown Employee Benefits lawyer Hill Ward Henderson

Melanie is a Shareholder in the firm’s Executive Compensation & Employee Benefits Group. She practices in the area of ERISA, employee benefits and executive compensation. Melanie counsels a diverse clientele of for-profit,  nonprofit and governmental entities of all sizes regarding their qualified and nonqualified employee benefit plans, including 401(k) and profit sharing plans, 457 and 403(b) plans, defined benefit plans, ESOPs and other stock based benefits, and health, welfare and other fringe benefit plans. She drafts qualified and nonqualified plans, and provides...

Bret Hamlin employee benefit lawyer Hill Ward Henderson

Bret is a Shareholder in the firm’s Executive Compensation & Employee Benefits Group. He practices primarily in the areas of employee benefits, deferred compensation and trusts. Prior to entering the private practice of law, he provided plan design and consulting, third-party administration and investment, as well as retirement plan education services for clients. 

Bret represents large, medium and small employers with respect to many employee benefit matters, including both single employer and multiple employer qualified retirement plans, deferred...

Timothy P Zehnder employee lawyer Hill Ward Henderson

Tim is an Associate in the firm’s Executive Compensation & Employee Benefits Group. His practice focuses primarily on advising client employers (private and public, tax-exempt and for-profit) on a wide variety of compensation and benefits matters, including plan design, administration and termination, compliance with applicable laws (including the Internal Revenue Code, ERISA, HIPAA, and the Affordable Care Act), and resolution of compliance issues with the Internal Revenue Service, Department of Labor and Pension Benefit Guaranty Corporation.  Tim has experience assisting...

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