On September 10, 2019, the Wage and Hour Division (“WHD”) of the Department of Labor (“DOL”) issued a second opinion which further clarifies the DOL’s position on designating leave under the Family Medical Leave Act (FMLA). Specifically, the opinion confirms the March 2019 opinion (FMLA 2019-1-A) that 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 determine whether 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.
This latest opinion addresses the question of whether an employer may delay designating paid leave as FMLA leave if the delay complies with a collective bargaining agreement (CBA), and the employee prefers that the FMLA designation be delayed. The claim being that the CBA provides a greater benefit, and employees should be able to postpone using FMLA leave until they have exhausted their paid leave. The opinion makes clear that these leaves should run concurrently, and that neither the employee nor the employer may decline or delay FMLA protection for that leave. “This is the case, […], even if the employer is obligated to provide job protections and other benefits equal to or greater than those required by the FMLA pursuant to a CBA or state civil service rules. See 29 U.S.C. §§ 2652-53; 29 C.F.R. § 825.700.”
What employers must remember, however, is that the entitlement to benefits (other than group health) while on FMLA leave is dependent on an employer’s policy for providing these benefits to employees on other forms of leave. Therefore if a CBA provides for the accrual of seniority when employees use CBA accrued paid leave, employers must allow employees to accrue seniority when they are substituting FMLA leave for paid leave.
