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DOL Opinion Letter Clarifies Employer Responsibilities Regarding FMLA Leave Designation (US)

On March 14, 2019, the U.S. Department of Labor (“DOL”), Wage and Hour Division, released an opinion letter, FMLA2019-1-A, stating that employers cannot delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.

In the opinion letter, the DOL opines that employers are prohibited from designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. The DOL acknowledges that employers can provide additional leave to employees who have exhausted their 12-week FMLA leave allotment, or who have not yet qualified for FMLA leave, but the DOL’s position is that employers cannot characterize this time as protected FMLA leave. Further, if an employee uses paid leave for a portion of his or her absence for reasons that would qualify them to take unpaid FMLA leave, the employee’s paid leave must run concurrently with the FMLA leave and not be used to extend it.

The DOL also takes the position in the opinion letter that once an eligible employee communicates a need to take leave under the FMLA, neither the employer nor the employee can decline FMLA protection for that leave and instead preserve protected FMLA leave for future use. As soon as the employer has sufficient information to determine that the employee is eligible for and entitled to take FMLA leave based on present circumstances, the employer must notify the employee that it is designating the time off as FMLA leave within five business days, unless there are extenuating circumstances. Therefore, even if the employee would prefer to delay the designation of their leave as FMLA-qualifying so they can first exhaust available paid leave before taking unpaid FMLA leave, the employer cannot do so and must designate the leave as FMLA leave as soon as the determination is feasible. This opinion letter marks a sharp departure from the Ninth Circuit Court of Appeals’ holding in Escriba v. Foster Poultry Farms, Inc. – namely, that an employee may use non-FMLA leave for an FMLA-qualifying reason and preserve available FMLA leave for future use.

To comply with this recent DOL guidance, employers are advised to assess eligibility and entitlement to take FMLA leave as soon as they are put on notice of a potentially qualifying condition; to designate leave as FMLA leave as soon as possible, providing written notice of designation within five business days; to ensure that employees’ paid time off runs concurrently with FMLA leave; and to provide no more than 12 (or 26, if applicable) weeks of FMLA leave. This is true even if employees would prefer that their employer delay the FMLA designation, or if the employer is willing to treat more time off as subject to FMLA protections.

© Copyright 2020 Squire Patton Boggs (US) LLP


About this Author

Melissa Legault, Squire PB, Employment lawyer

Melissa Legault is an associate in the Phoenix office, where she focuses her practice on labor and employment matters. Melissa assists employers in diverse matters related to their employment relationships. She routinely researches and analyzes legal authorities for drafting memoranda, pleadings and position statements related to employment law. Melissa also conducts legal research on employment case law and current events to help clients achieve their goals while complying with frequently changing regulations.

Melissa graduated magna cum laude from the...

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Laura Lawless Partner Squire Patton, trial lawyer, Discrimination Lawyer, Harassment, Employment Matters

Laura Lawless is a trial lawyer who represents employers before federal and state courts and administrative agencies, as well as in arbitration and mediation proceedings, defending employers in matters arising under federal and state employment laws, including claims of discrimination, harassment, retaliation, whistleblower retaliation, wrongful termination, wage and hour violations, and breach of contract, as well as in in noncompetition, nonsolicitation, nondisclosure, trade secret and unfair competition cases.

Laura also counsels and collaborates with human resources professionals, including assisting in workplace investigations, auditing wage and hour practices under the Fair Labor Standards Act and analogous state laws, reviewing and advising on leaves of absence, preparing executive employment agreements and separation agreements, drafting employment policies and handbooks, advising on drug and alcohol testing and workplace violence prevention, delivering interactive management and executive training, and advising on reduction-in-force planning and implementation. She is also a frequent contributor and speaker on employment and labor law topics, including at state and local affiliates of the Society for Human Resources Management (SHRM).

In addition to her labor and employment practice, Laura assists private business owners in complying with Title III of the Americans with Disabilities Act and analogous state laws, requiring disability accessibility in places of public accommodation.

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