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Don’t Delay with the FMLA: DOL Says Time Off must be Designated as FMLA Leave Even if Other Paid Time Off Benefits are Used

posted Apr 10, 2019, 4:12 PM by Allison Ayer

The Department of Labor recently issued an opinion letter concerning leave under the Family and Medical Act (“FMLA”).  DOL now opines that an employer must designate employee as FMLA leave if such time off has been requested for an FMLA qualifying event, even if the employee uses other paid time off benefits during this time.  The DOL also opined that employers cannot designate more than 12 weeks as FMLA leave.  This means, among other things, that an employer cannot delay its FMLA designation during the period when the  employee maybe applying his or her accrued paid time off.  Here is the DOL opinion in greater detail:

The opinion letter describes a practice where employers permit employees to use some or all available paid sick or other earned paid time off (see 29 C.F.R. §825.700), but do NOT designate such paid time off as FMLA leave even though it has been taken for an FMLA qualifying reason, i.e. it has been used for one’s own serious health condition, a pregnancy or adoption or the care of one’s family member suffering from a serious health condition.  In essence, the opinion letter describes a practice where employers delay designating time off as FMLA leave while employees use their accrued paid time off while they are out of work for an FMLA qualifying reason.  The DOL said that this practice was not permissible. 

Some background may help put this opinion into perspective.  As noted by the DOL, the FMLA and its Regulations provide that eligible employees are entitled to take up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons.  Employers must, via written notice,  designate such time off as FMLA leave if it is for a qualifying reason.  See 29 C.F.R.   §825.300(d)(1).  Such notice confirms for both the employer and the employee that the employee’s job must be protected during this statutory leave.  Once an eligible employee communicates sufficient information for an employer to understand that the reason for the leave is FMLA-qualifying, “the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement” the employer must designate the leave as FMLA leave within five (5) business days.  See 29 C.F.R. §825.300(d)(1). In that way, it is clear to both the employer and the employee that the employee is statutorily entitled to his or her job back when the employee returns from such designated leave.  The DOL has now expressed its view that the employer cannot delay such notice designation even if both the employer and the employee would prefer to delay designation until after the employee uses other paid time off benefits during leave first. 

At first, the opinion may seem to propound a rule that bans employment policies more generous than the statute, but that is not the point.  Rather, the DOL simply has opined that an employer’s policies cannot alter (i.e., expand) an employee’s statutory rights.  Indeed, such an opinion is really a mere truism, and no different from asserting that private citizens cannot change an Act of Congress.  Private citizens can make contracts and other enforceable promises to each other but they cannot expand or decrease the statutory rights of its employees or business associates merely by making such contracts or promises.

Thus, while employers are free to adopt leave policies that are more generous than those required by the FMLA, employers cannot designate more than 12 weeks of protected leave under the FMLA.  According to the DOL, while an employer must follow its own policies and benefits programs for paid leave time to employees above and beyond the rights provided by the FMLA, such additional benefits “cannot expand the employee’s 12-week…entitlement under the FMLA.”  As such, if an employee applies paid time off during the period of otherwise unpaid FMLA leave, that paid time off must count towards the 12 weeks of FMLA entitlement and protection.  If an employer grants its employees more than 12 weeks of leave pursuant to a paid sick leave or other time off policy more generous than the FMLA, that extended time off beyond 12-weeks would not be FMLA protected, although it may nevertheless be required as a matter of contract or other applicable law.     

What the DOL’s opinion truly calls for is consistency and clarity.  When an employer learns that an employee’s leave is being taken for an FMLA purpose, the employer must designate it as protected leave under the FMLA in a timely fashion.  This ensures that an employee will know he or she will be protected whenever he or she takes leave for an FMLA purpose and it clarifies the obligation of the employer to issue such notice without exception or delay.  This ensures no administrative errors that could otherwise cause delay in the employee’s return which could lead to forfeiture of an employee’s right to return to his or her job.  In short, employers will have no excuse to issue not to issue clear notice to employees about their FMLA rights, and there should be no reason for employers and employees not to know where exactly they stand under the statute.

In light of the DOL’s opinion letter, here is a summary of steps for employers to follow with respect to designating time off as protected FMLA leave:

·        Eligibility NoticeWhen an FMLA eligible employee requests time off, employers should provide an Eligibility Notice AND a Rights and Responsibilities Notice.  The DOL has published a Compliant Form, WH-381.  The response will allow the employer to determine whether the time off can be counted against the 12-week FMLA leave entitlement.

·        Medical Certification.  If the employer is going to require a medical certification, a SEPARATE MEDICAL CERTIFICATION FORM must be provided to the employee at the same time the Eligibility and Rights and Responsibilities Notice is provided.  The DOL has published a compliant medical certification Compliant Form (WH-380-E) to provide with the Eligibility and Rights and Responsibilities Notice. 

·        Designation Notice.  Within five (5) business days of the employer having sufficient information to determine that the employee’s requested leave qualifies as FMLA leave, the employer must provide a Designation Notice, DOL compliant Form WH-382.  In essence, the Designation Notice explains in writing that the employer is going to count time off as FMLA leave against the employee’s 12-week entitlement.  According to the DOL’s latest opinion letter this Designation must be provided within five (5) business days of the employee asking for FMLA-qualifying leave, even if he or she uses other paid time off in conjunction with the FMLA leave.  Further to that point, the Designation Notice must identify the amount of leave that will count against the employee’s FMLA entitlement and state whether the employee is required to substitute paid leave for unpaid FMLA leave.  See 29 C.F.R. 300(d) and 825.301.

·        Fitness for Duty Certification. If the employer is going to require the employee to provide a fitness-for duty certification to return to work, it must tell the employee of this requirement at the same time that it provides the Designation Notice.  If the employer will require the fitness-for-duty certification to specifically address whether the employee can perform the essential functions of the job (which clearly it should to avoid running afoul of the ADA), it must provide a list of the job functions with the designation notice.  Providing a job description with the Designation Notice would satisfy this requirement, so long as the description lists the essential functions.  See 29 C.F.R. 300(d), 825.301, 825.312 and 825.313.  There is a place on the DOL compliant Designation Notice, Form WH-382, for the employer to check off if the fitness-for-duty certification will be required.  Compliant Form WH-382 also has a space to check whether the list of essential functions is included with the designation.    

The above is provided for educational purposes only and is not legal advice.  As always consult with legal counsel, as appropriate, to ensure that all steps are taken to designate time off as FMLA leave and count the time against the 12-week entitlement.  

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