On March 14, 2019, the U.S. Department of Labor (DOL) issued a new opinion letter addressing whether an employer may delay designating paid leave as Family and Medical Leave Act (FMLA) leave. The issue often arises when employees who need time off ask to use their paid leave first and advise the employer that they “decline” the FMLA designation in the hopes of saving their job-protected leave for a later time.
Can Employees Decline to Use FMLA?
Under the FMLA, eligible employees of covered employers may take 12 weeks of unpaid, job-protected leave for specified family and medical reasons. The employer may require, or the employee may elect, to “substitute” (or run concurrently) paid leave with any unpaid FMLA leave.
According to the DOL’s regulations, once you have enough information to determine whether an employee is taking leave for an FMLA-qualifying reason, you are required to provide a written designation notice to the individual within five business days, absent extenuating circumstances. Failure to give proper notice may constitute interference with or denial of the employee’s FMLA rights.
In the new opinion letter, FMLA 2019-1-A, the DOL opined, “An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employer nor the employee may decline FMLA protections for that leave.” Even if an employee would prefer you to delay the designation, you may not put off marking the leave as FMLA-qualifying.
What This Means in the Real World
The issues addressed in the opinion letter commonly arise when an employee has more than one reason for FMLA leave. Employees may resist using their FMLA entitlement for an earlier absence because they want to save leave for later ones. The best and most common example is a pregnant employee who takes time off for a different FMLA-qualifying reason, such as to care for another child or a sick parent. Similarly, the employer may prefer not to force the employee to take FMLA leave for every little absence that might qualify.
In that situation, not only can you require the employee to use FMLA leave (until exhausted) for all the absences—you are required to do so. For employees who have paid leave available, you may allow them to choose between using it concurrently with FMLA leave or save it for after their protected leave is exhausted, but you may not allow them to use it first and save their FMLA leave for later. That’s a big deal because many employers have official policies allowing employees to do just that. You also may grant additional unpaid leave after the FMLA leave expires.
Employers are often faced with the dilemma of what to do when an employee doesn’t want an absence designated as FMLA leave and chooses to use up other types of paid leave first. Here, the DOL clarified that when any absence qualifies as FMLA leave, the employer must designate it as such.
While Florida employers now have clarity, employers with operations under the jurisdiction of the U.S. 9th Circuit Court of Appeals (which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) should consult with legal counsel since that circuit has held that an employee can affirmatively decline to use FMLA leave.
Lisa Berg is a Shareholder at Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. and an Editor for the Florida Employment Law Letter. She can be contacted at firstname.lastname@example.org.