On March 14, 2019, the Wage and Hour Division (“WHD”) of the Department of Labor (“DOL”) issued an opinion clarifying the DOL’s position on designating and taking leave under the Family Medical Leave Act (FMLA). According to the opinion, employers may NOT delay the designation of FMLA-qualifying leave “even if the employee would prefer that the employer delay the designation.” Once an employer has the information necessary to make a determination that the leave is for an FMLA-qualifying reason, it must do so and notify the employee of the status of his/her leave within five (5) business days.
In addition, the opinion clarifies that employers may not designate more than 12 weeks of leave – or 26 weeks of leave for military caregiver leave – in a year as FMLA leave. This means if an employee elects to take paid leave for reasons that qualify for FMLA protection over unpaid FMLA leave, the paid leave counts toward the 12-week FMLA entitlement and does not expand it. The opinion makes clear that employees may not decline FMLA leave to preserve it for future use and use paid time before tapping into their FMLA leave.
The advisory opinion, which is available here, provides a useful guide for employers on how to respond to employee requests not to designate an FMLA-qualifying absence as FMLA leave. Contact your NMP attorney with questions or concerns regarding your compliance with this opinion.
