On March 14, 2019, the U.S. Department of Labor (“DOL”) issued Opinion No. FMLA2019-1-A, in which the DOL responded to a question regarding whether an employer may delay designating paid leave as Family and Medical Leave Act (“FMLA”) leave or may expand an employee’s FMLA leave beyond the statutory 12-week period (or 26 weeks of military caregiver leave). Specifically, the DOL responded to a question concerning the practice of voluntarily permitting employees to exhaust some or all of their available paid leave prior to designating leave as FMLA leave, even when the leave clearly qualifies under the FMLA.
In response, the DOL noted that under the FMLA, employees are entitled to up to 12 weeks of unpaid leave for qualifying reasons. The employer may require, or the employee may elect, to substitute accrued paid leave for unpaid FMLA leave. The employer is responsible for designating leave as FMLA-qualifying and providing the employee with notice of the FMLA designation. An employer’s failure to fulfill this requirement may constitute FMLA interference.
Therefore, the DOL determined that once an employee communicates to the employer that the employee needs leave for a FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for the leave. When an employer determines the leave is for a FMLA-qualifying reason, the leave then will be FMLA protected and count toward the employee’s FMLA leave entitlement. As such, the employer may not delay designating the leave as FMLA-qualifying, even if the employee requests that the employer delay the designation.
Additionally, the DOL determined that an employer may not designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. While an employer may provide benefits that are greater than those established by the FMLA, providing such leave cannot expand the employee’s FMLA entitlement. Accordingly, if an employee substitutes paid leave for unpaid FMLA leave, then the employee’s paid leave counts toward the employee’s FMLA leave entitlement and does not expand that entitlement.
While many school districts have established FMLA practices that are consistent with the DOL’s Opinion, some school districts have collective bargaining provisions or past practices that permit employees to use paid leave before FMLA leave. Such a practice may be contrary to the DOL’s Opinion, and school districts should consult with their board counsel regarding the appropriate designation of FMLA leave going forward.