On March 14, 2019, the United States Department of Labor (DOL) issued an opinion letter clarifying the issue of when leave under the Family and Medical Leave Act (FMLA) must be so designated. DOL Opinion Letter, FMLA2019-1-A. The FMLA entitles covered employees to twelve (12) weeks of unpaid leave for qualifying medical conditions for the employee or an immediate family member, or twenty-six (26) weeks of military caregiver leave. In practice, many employers permit employees to exhaust available paid sick or vacation time prior to beginning leave under the FMLA. This practice was seen as a benefit to employees, who could effectively extend a medical leave for weeks or months beyond the time available under the FMLA. The DOL now advises this practice is not compliant with an employers obligations under the FMLA.
While strict compliance with the FMLA requires an employer to make appropriate inquiry into the reasons for leave in order to determine if the leave should be FMLA-designated, practical compliance is not clear-cut. Many employers simply accept an employees request for time off as vacation or sick time without requesting the additional information necessary to conduct a proper inquiry as to FMLA designation. Other employers allow employees to decline FMLA-qualified leave even after the employer made it available to them. Although most courts hold employers to a stricter compliance standard in FMLA claims, the employee-can-choose practice was upheld as lawful by the Ninth Circuit in 2014 in Escriba v. Foster Poultry Farms, Inc., where the court held employees can decline FMLA-qualifying leave and take paid time off instead.
In Escriba, an employee declined FMLA leave to care for her ill father, instead choosing to take vacation. After failing to return to work, the employee was fired and brought suit arguing the employer. In its defense, the employer argued the leave was not protected under FMLA; the employee argued the employer was required to designate the leave as FMLA regardless of her wishes. The Ninth Circuit Court of Appeals sided with the employer. While no other Circuit has issued a similar ruling, the Ninth Circuit opinion did lend support to the practice of delaying or declining FMLA leave a choice available to employees.
The DOL opinion letter specifically rejects the Ninth Circuit approach, stating that [a]n employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. According to the DOL, once an employee communicates a need for leave which is covered under the FMLA, the employer is prohibited from delaying the designation. And, according to applicable regulations, [o]nce the employer has enough information to make this determination, the employer must, absent extenuating circumstance, provide notice of the designation within five (5) business days.
The opinion letter further clarifies the issue of an employer offering more generous leave than available under the FMLA. In this instance, the DOL states an employer is prohibited from designated more than 12 weeks (or 26 weeks) as FMLA leave, and employer-offered benefits cannot expand the employees entitlement under the FMLA. Any use of paid leave used to cover unpaid FMLA leave would count towards the employees 12-week FMLA entitlement. In practice, this means an employee is only afforded FMLA protections for 12 weeks and any leave beyond the 12 week entitlement would not be covered by FMLA protections.
While courts are not required to follow the advice provided in a DOL opinion letter, this does suggest the DOL will be evaluating complaints of FMLA violations in a new, stricter light.
What Should You Do As An Employer?
Throughout most of the country, immediately designating qualifying leave as FMLA leave has always been best practice for strict compliance with the law. For employers who have offered employees a choice, or have been lax with strict enforcement, this opinion letter is a great reminder that failing to comply with the FMLA will only benefit the employee if a dispute ever arises over FMLA protections. For this reason, employers should review policies and procedures related to leaves of absence to ensure employees and leave administrators understand there is no choice in the matter of FMLA designation. While there is nothing illegal about offering a more generous leave policy to employees, it should be clear the extended leave would not be protected under the FMLA.
In terms of protecting the employers leave practices, it would be wise to review or establish internal procedures which provide for the appropriate steps to take when a potentially qualifying leave is requested, including a formal documentation procedure for notifying employees within five (5) business days that a leave has been designated as FMLA-qualifying leave. A review of practices related to the designation of intermittent leave, which is always a difficult issue from a compliance standpoint, should be conducted to ensure any current or future uses of leave time for a medical issue qualifying as intermittent leave are properly designated and routinely documented to ensure compliance.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country for over sixty years and are available to discuss issues related to DOL and FMLA compliance and other matters. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.