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August 03, 2020

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U.S. Department of Labor Issues New FMLA Guidance

On March 14, 2019, the U.S. Department of Labor (DOL) issued an opinion letter concerning the Family Medical Leave Act (FMLA). The FMLA provides eligible employees a maximum of 12 weeks of unpaid, job-protected leave for specified family and personal medical reasons and up to 26 weeks to care for a covered service member per year. In its opinion letter, the DOL addressed whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory requirements.

The DOL took the position that employers cannot delay in designating leave as FMLA qualifying, even if one or both of the employee or employer want to do so. The DOL made clear that once an employee notifies his or her employer about a need to take FMLA leave, the employer must provide notice of the designation to the employee within five business days, absent an exigent circumstance. Moreover, employees may not extend their FMLA qualified leave by utilizing paid leave such as paid time off (PTO) or paid sick leave. FMLA leave must run concurrently with paid leave. Thus, “if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts towards his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.”

The DOL’s opinion letter is noteworthy in that many employers currently allow employees to combine FMLA and accrued paid leaves to effectively increase their leave entitlement. Further, the DOL’s letter conflicts with the Ninth Circuit’s decision in Escriba v. Foster Poultry Farms (9th Cir. Feb. 25, 2015), in which the court held that an employee can decline to use FMLA leave in order to first exhaust any other leave provided under the employer’s policies.

Given the Escriba decision, we recommend that employers within the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) continue to follow Escriba and allow employees to use accrued sick and other leave time before requiring the use of FMLA leave. Employers in other jurisdictions, unless there is case law to the contrary, you should incorporate the DOL’s recent guidance.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume IX, Number 88


About this Author

David Wolfe, Drinker Biddle Law Firm, Chicago, Tax Law Attorney
Of Counsel

David L. Wolfe represents clients in a full spectrum of industries with an emphasis on tax-exempt organizations. His broad-based practice includes tax-qualified plans and executive compensation.

David focuses on benefits issues for tax-exempt clients, U.S. benefits for international clients, global stock arrangements, reducing ERISA litigation and fiduciary liability exposure, cash balance and other hybrid pension arrangements. He also handles legal compliance reviews, executive compensation, incentive pay arrangements and the...


Renee C. Manson counsels clients on employee relations issues, terminations, employee discipline, and wage and hour compliance. She also advises clients on compliance with federal and state labor laws and regulations, including the Family and Medical Leave Act, the Fair Labor Standards Act, and Title VII of the Civil Rights Act. Renee assists with internal investigations into allegations of discrimination, employee misconduct, and harassment.

Renee also advises higher education clients on compliance with Title IX of the amendments to the Higher Education Act, the Violence Against Women Act, the Americans with Disabilities Act and the Family Educational Rights and Privacy Act, in addition to advising on matters relating to student conduct and developing and interpreting institutional policies and procedures.

While in law school, Renee worked as a law clerk in the Albemarle County Commonwealth’s Attorney’s Office, where she conducted bench trials, negotiated plea deals and conducted preliminary hearings. She also served as a summer law clerk in the United States Attorney’s Office for the Southern District of California, researching and drafting appellate briefs, pre-sentencing reports, and motions on border-related crimes, child exploitation, and gang-related crimes.

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