With the latest pronouncement by the Department of Labor (“DOL”) regarding the Family Medical Leave Act (“FMLA”), employers are wise to review and revise leave policies to ensure that they do not run afoul of the agency’s most recent interpretation of the law.
On March 14, 2019, the DOL’s Wage and Hour Division (“WHD”) issued its first opinion letter (FMLA2019-1-A) of the year concerning the FMLA, specifically prohibiting an employee’s ability to expand the 12-week benefit period of protected leave provided under the FMLA, in two ways:

Employees May NOT Delay the Designation of FMLA-Qualifying Leave

Employers are prohibited from delaying designation of FMLA-qualifying leave once an employee has communicated the need to take leave for an FMLA-qualifying reason. Some employers permit employees to use accrued paid leave prior to designating leave as FMLA-qualifying. Such policies ultimately result in an employee receiving an extended benefit period beyond the 12 weeks provided under the FMLA. See WHD Opinion Letter FMLA2003-5, 2003 WL 25739623, at *2 (Dec. 17, 2003) (“Failure to designate a portion of FMLA-qualifying leave as FMLA would not preempt … FMLA protections). Accordingly, the recent DOL opinion letter clarifies that, “once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave … As such, employers may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.” (emphasis added).
Employees May NOT Substitute Accrued Paid Leave for Unpaid FMLA Leave to Extend the Benefit Period
Employers may not permit employees to substitute accrued paid leave for unpaid FMLA leave, such that it expands the employee’s 12-week entitlement. According to the opinion letter, “f an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.”
Employers that currently allow employees to either 1) delay the designation of FMLA-qualifying leave, or 2) decide whether to use accrued paid leave during otherwise unpaid FMLA leave, should reconsider such policies to be in compliance with the law. For further information, please contact Attorney Meagan L. Thomson at 401-824-5100 or email mthomson@pldolaw.com.

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