June 18, 2019

June 18, 2019

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June 17, 2019

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Department of Labor Warns Employers Not to Delay Designating FMLA Leave

The US Department of Labor (DOL) issued a new Opinion Letter on March 14 reinforcing the prohibition against an employer delaying the designation of FMLA-qualifying leave as FMLA leave. The question posed to the DOL was whether an employer may permit employees to exhaust some or all available paid sick or other leave prior to designating leave as FMLA-qualifying, even when the leave is clearly FMLA-qualifying. 

Citing the regulations interpreting the FMLA, the DOL explained that when 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. Once the employer has enough information to determine whether a leave is being taken for a FMLA-qualifying reason, the employer has five business days to provide a written “designation notice” to an employee, absent extenuating circumstances. Failure to provide that notice may constitute an interference with the employee’s FMLA rights in violation of the law. Therefore, the DOL instructed that an employer cannot allow its employee to use paid leave or other leave before designating FMLA-qualifying leave as FMLA leave. Of course, the employer may require the employee to “substitute” accrued paid leave to cover any part of the FMLA unpaid leave period, but it will run concurrently with FMLA leave, not precede it. 

This Opinion Letter is a good reminder to employers to check their procedures to ensure that a FMLA designation notice is going out promptly (within five business days) once the employer has enough information to determine that the leave is FMLA-qualifying. 

DOL Opinion Letter: https://www.dol.gov/whd/opinion/FMLA/2019/2019_03_14_1A_FMLA.pdf

© 2019 Jones Walker LLP


About this Author

Jennifer Faroldi Kogos, Labor & Employment Attorney, Jones Walker Law Firm

A trusted advisor and dependable advocate, Jennifer focuses on litigation, counsel, and training for large employers in the healthcare, retail, and energy industries. She has particular experience defending Fair Labor Standards Act (FLSA) collective actions and litigating a broad range of employment claims, including sexual and other workplace harassment, all forms of discrimination, and wage-and-hour laws. Jennifer defends employers in litigation under Title VII, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Age...