The U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued an important opinion letter guidance relating to the practice of delaying the designation of FMLA-qualifying leave by employers or at the request of employees. Guidance states that once an eligible employee communicates a need to take leave for a FMLA-qualifying reason, neither the employee nor the employer may delay the designation or decline the 12-week FMLA protection for that requested leave. This means that employers are not able to voluntary permit employees to exhaust some or all available paid sick leave (or other type of paid leave) before designating leave as FMLA and should not designate additional FMLA leave beyond the 12-week (or 26 weeks of military caregiver leave) FMLA entitlement. (See, March 14, 2019, WHD Opinion Letter)

What are an Employer’s General Requirements Under FMLA?

The FMLA entitles eligible employees of covered employers to take up to 12 weeks (or 26 weeks for military caregivers) of unpaid, job-protected leave per year for specified family and medical reasons. An employer may require, or the employee may elect, to substitute accrued paid leave (e.g., paid vacation, paid sick leave, etc.) to cover any part of the unpaid FMLA entitled period. It is an employer’s responsibility to designate leave as “FMLA-qualifying” and provide written notice of this designation to an employee within five business days after the employer has enough information to determine whether the leave being taken is for a FMLA-qualifying reason.

How Does the WHD Opinion Impact an Employer’s Existing Benefit Program?

The opinion for the DOL does not diminish or prohibit an employer from observing their own employee benefit program that may provide greater family or medical leave rights to their employees than those established by FMLA. The DOL has simply clarified that providing such additional leave outside of FMLA cannot expand the employee’s 12-week (or 26 week of military caregiver leave) entitlement under FMLA. Therefore, if an employee substitutes paid leave for unpaid leave, the employee’s paid leave counts toward his or her 12-week (or 26-week of military caregiver leave) FMLA entitlement and does not expand that entitlement.

Even if the employer is obligated to provide job protection and other benefits equal to or greater than those required by the FMLA (e.g., pursuant to a collective bargaining agreement or state civil service rules) that leave will run concurrently if the leave is FMLA-qualifying. (See, September 10, 2019, WHD Opinion Letter)

How does this impact Seniority Policies and FMLA Leave?

Employer should be mindful of any existing seniority policy that may interfere with an employee’s FMLA rights.  An employee’s entitlement to accrual of seniority during a period of FMLA is determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave (whether that leave is paid or unpaid). For example, if leave policies do not permit accrual of seniority during any other types of unpaid leave (such as a leave of absence) then this same policy should apply to unpaid FMLA leave. In essence, the treatment must be consistent, and an employer may not treat employees who take FMLA leave in a manner that discriminates against them.

Key Considerations for Employers:

  • The designation responsibility remains with employers under FMLA and employers should ensure that there is no delay as soon as an employer has enough information to determine that a leave request is FMLA-qualifying.
  • Employers must ensure compliance with the FMLA by requiring additional paid or unpaid leave to follow or run concurrent with FMLA leave.


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Lizet Ramirez – Lizet is a Client Compliance Manager for Sequoia One, where she works with our clients to optimize and streamline benefits compliance. In her free time, Lizet enjoys live music, travel, hiking and spa days.