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August 11, 2020

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August 10, 2020

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What Do You Do When Your Employee Doesn't Want to Count Leave Against FMLA Entitlement?

A couple common scenarios:

  • Your longtime employee, Karen, tells you that she wants to take leave to care for her sick husband—leave that would certainly constitute “qualifying leave” under the Family and Medical Leave Act (“FMLA”) as you are a “covered” employer under the FMLA and Karen is eligible for the leave. However, Karen tells you that she doesn’t want you to certify it as FMLA leave just yet because she is pregnant and she wants to “save” all of her 12 weeks of FMLA leave until after her baby is born.  Karen says she will even take the first leave on an unpaid basis, just as long as she still has 12 weeks of protected leave when she comes back.

  • Your employee, Rob, wants to take leave for a planned surgery, but tells you that he wants to take all of his available paid time off “first” and wants you to delay certifying the leave as FMLA leave until after he has run out of paid time off.

What should you do?  Under circumstances like these, can you delay designating either of these leaves as FMLA leave since Karen and Rob have asked that you do so?

On March 14, 2019, the Department of Labor (DOL) issued an opinion letter that provides needed clarity.  The opinion letter was issued in response to an employer’s queries as to (1) whether it could delay designating an employee’s paid leave as leave under the FMLA or (2) whether it could permit employees to expand their FMLA leave beyond the statutory 12-week entitlement.

The DOL noted that pursuant to the applicable regulation, 29 C.F.R. § 825.300(d)(1), the employer is responsible in all circumstances for properly designating any leave that qualifies under FMLA and providing notice of the designation to the employee.  Unless extenuating circumstances exist, employers must send the employee a “designation notice” within five business days after the employer has enough information to determine whether the leave is being taken due to a FMLA-qualifying reason.  If an employer fails to provide the designation notice within five business days, then the employer could be seen as interfering, restraining, or denying an employee’s FMLA rights and leave.

According to the DOL, this means that employers must designate FMLA-qualifying leave as such as soon as they have enough information to do so and must deduct that leave from the employee’s total FMLA allotment “even if the employee would prefer that the employer delay the designation.”  Employees may not take paid leave to defer the designation of FMLA protected leave.  Rather, employers may permit employees to save their available PTO and take it after their FMLA-designated leave has been exhausted.

Wisconsin employers should know that employees in this state have the right to decide whether Wisconsin Family and Medical Leave Act (“WFMLA”) leave will be used or not during a period of absence unless the employer leave to be used by the employee (such as FMLA leave) and the WFMLA leave are for the same reasons. If the FMLA leave is for the same reason as potential WFMLA leave, then the FMLA leave will be viewed as an election to use WFMLA leave as well.[1]

Importantly, the DOL opinion letter reminds employers that while the FMLA grants eligible employees 12 weeks of leave in a year, there is nothing in the law that prevents employers from providing additional leave to their employees, so long as they don’t label that expanded leave as FMLA leave.  An employer thus may adopt a policy providing more generous personal leaves to its employees, or it may allow an employee to use available paid time off after his or her FMLA leave allotment has been exhausted.  The important distinction is that an employer cannot designate more than 12 weeks of leave (or 26 weeks of leave for military caregiver leave) as FMLA leave.


[1] Wis. Admin. DWD 225.01(9).

© 2020 Davis|Kuelthau, s.c. All Rights ReservedNational Law Review, Volume IX, Number 189


About this Author

Laurie Meyer, Davis Kuelthau, labor and employment lawyer

As a member of Davis|Kuelthau’s Labor and Employment practice group, Laurie combines her experience in human resources management with over 20 years of employment law practice to provide creative, strategic counsel and defense to employers of every size on a full range of employment issues. This depth of experience allows her to provide legal assistance to employers in ways that minimize risk and avoid litigation and support long-term business goals. Laurie takes a practical approach to solving employment problems for her clients and achieving their goals in a cost-...

 Abby S. Busler Davis Kulthau Associate Labor Employment School and Higher Education


Abby is a member of the firm’s Labor & Employment team and the School and Higher Education practice group in Green Bay. Her practice primarily focuses on counseling education clients in school law and labor and employment issues.

Prior to joining the firm, Abby attended the University of Wisconsin-Madison and was a student athlete on the Women’s Golf team before heading off to Valparaiso University School of Law on a full scholarship. While at Valparaiso, Abby was a member of the University School of Law Honors program, an associate editor of the Law Review and the chief justice of the Moot Court Society. Abby graduated from Valparaiso University School of Law magna cum laude.

Abby worked as a law clerk for the Department of Public Instruction, where she conducted extensive legal research on educational law issues and assisted the legal department in representing the state superintendent in cases regarding open enrollment, expulsion appeals, the school choice program, and the food and nutrition programs.

Abby also completed a federal externship with the Honorable Rodovich in the Northern District of Indiana and interned for the general counsel of Valparaiso University, Darron Farha.