DOL Doubles Down on Employers Not Delaying Designating Leave as FMLA

The U.S. Department of Labor (DOL) recently issued its second opinion letter advising employers that they cannot delay designating leave under the federal Family and Medical Leave Act (FMLA).

The FMLA applies to all public-sector employers and private employers with 50 or more employees.  It entitles eligible employees to 12 weeks of job-protected leave for family and medical situations like birth or adoption of a child and the serious health condition of the employee or the employee’s spouse, parent, or child. The FMLA makes employers responsible for determining when leave qualifies for FMLA and for designating leave as FMLA-qualifying within five days of making such determination. But, what if employees don’t want FMLA leave to start right away or a separately negotiated agreement between the employer and its employees exists saying that FMLA leave designation can be delayed until after other leave is exhausted?

In its second opinion letter on the topic this year, the DOL says that employers cannot wait to designate FMLA leave. The latest opinion letter, issued September 10, 2019, involved an employer with collective bargaining agreements negotiated with its unionized employees that said employees could wait to start FMLA until after their accrued, paid leave was exhausted. The DOL also reaffirmed that neither the employer nor the employee can decline FMLA protections for the leave.

DOL opinion letters are not law and do not have to be relied upon by courts; however, employers who follow their dictates have a defense against legal action.

Contact us with your questions about FMLA leave designation.