by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
March 18, 2019
There is joy in my blessed li’l FMLA heart. The US Department of Labor has issued a much-needed Opinion Letter addressing whether an employer or employee can elect not to apply the FMLA to a leave for an FMLA-qualifying event. Spoiler alert: The answer is NO.
This has never seemed like a gray area to me. We blogged about this over 3 years ago. (See prior blog posts here and here.) As I said back then, “No, no, no! The employee does NOT get to choose!” The regulations are clear, and the DOL FMLA Branch Chief has spoken publicly on this issue. Yet many employers still think employees have the right to choose whether to use FMLA for a qualifying absence.
In the new Opinion Letter FMLA2019-1-A, the DOL addressed this specific question: Can an employer delay application of FMLA to a leave that is clearly FMLA-qualifying and allow the employee to first use paid sick leave or other leave?
But the DOL went further. As stated in the Opinion Letter:
- 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.
- Accordingly, when an employer determines that leave is for an FMLA-qualifying reason, the qualifying
leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement.
- Once the employer has enough information to make this determination, the employer must,
absent extenuating circumstances, provide notice of the designation within five business days.
- And so, the employer may not delay designating the leave as FMLA-qualifying even if the
employee would prefer that the employer delay the designation.
When does this arise? Take a look at my friend Jeff Nowak’s blog FMLA Insights for a humorous example (and some additional guidance). Here is another scenario. Your employee announces she is pregnant. She also tells you that her husband needs surgery and she wants to take a week off to care for him during the operation and recovery. But, she doesn’t want to use her FMLA time for that, preferring to reserve it for bonding following the birth of the child. She’ll use her accrued sick leave and PTO instead:
EMPLOYEE: I am pregnant and want to take FMLA for bonding time after my baby is born. I also need a week off to care for my husband following his surgery next month. I want to use my sick leave for the time to care for my husband and save all of my FMLA for bonding. Remember, care of my husband is an allowed use for sick leave under our policy.
YOU (the employer): OK.
YOU (6 weeks later): Hey, you said you only needed a week off and you’ve been gone 2 weeks. You are out of sick leave and PTO. You’re fired.
EMPLOYEE: But you can’t fire me! My husband needed more time for recovery and care. The time off was for an FMLA reason and I have job protection.
YOU: You said you didn’t want to use FMLA.
EMPLOYEE: Yes, but I wouldn’t have chosen that if I had known I wouldn’t have job protection during my leave!
What a mess. I wonder who wins in front of a jury?
It’s OK to allow employees more time through company policies. The Opinion Letter makes clear that an employer cannot designate time as FMLA in excess of the 12 (or 26) weeks, whether before OR after FMLA leave. If you want to be more generous, provide it through a company policy but don’t call it FMLA. In fact, the FMLA regulations state that “[a]n employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA.” 29 C.F.R § 825.700.
But what about “substitution?” Sometimes there is confusion due to the provision in the FMLA regulations that an employee may “substitute” other leave for FMLA leave. But the regulations – and now the Opinion Letter – make it clear that paid leave provided by the employer will run concurrently with the unpaid FMLA leave. 29 C.F.R § 825.207(a). As the DOL says in the Opinion Letter:
[P]roviding such additional leave outside the FMLA cannot expand the FMLA’s 12-week (or 26-week) entitlement under the FMLA. . . . Therefore, if 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.
So here’s the deal, in my words:
- The FMLA is a law that provides 12 (or 26) weeks of job-protected leave of absence for 5 qualifying leave
reasons (key word: law).
- Neither the employer nor the employee can change the law or choose not to follow it.
- It’s the law.
Pings for Employers
- Don’t allow an employee to decline FMLA coverage and protections for a leave you know, or have reason
to believe, is for an FMLA-qualifying event.
- Always provide the employee with the FMLA Notice of Rights and Responsibilities and Eligibility Notice
within 5 days of the employee’s leave request. If you are not clear whether the leave is requested for an FMLA
reason, be safe and provide the employee with the notices and the certification form. Failure to do so
could be considered interference with the employee’s FMLA rights.
- Don’t chafe about this rule if it is news to you: It’s actually to your benefit! The rule gives you, the employer,
some control over how much time your employees can take off and when. You get to choose whether and
under what circumstances employees can take more company leave following FMLA leave by designing your
- If you live in states covered by the federal Ninth Circuit Court of Appeals, you may already be aware of the
opinion in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014). In that case the court held that
an employee may use non-FMLA leave for an FMLA-qualifying reason and decline to use FMLA leave in order
to preserve FMLA leave for future use. A few lower courts in other states have followed the Escriba decision.
In the Opinion Letter the DOL explicitly rejects the Ninth Circuit’s holding. This causes a conundrum for
employers within those states – whether to follow the court’s ruling or the FMLA regulations and now this
I strongly support the DOL’s interpretation as the only logical result from the FMLA statute and regulations, and have always maintained that the Escriba decision is flat out wrong. (But then, they didn’t ask me!) For more discussion see our prior blog posts linked above. But, you should check with your own employment counsel for advice regarding the specific fact situation you are dealing with.
Matrix can help! At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out. If you would like more information contact us at [email protected] or through your Account Manager.