The obligation to designate FMLA-qualifying leave and prohibition on expanding FMLA leave

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One of the Department of Labor WHDs first Opinion Letters in 2019 impacts FMLA leave with specifics provided on the designation and timing requirements of the FMLA leave entitlement.

Essentially, through the opinion letter, the DOL answers two questions: (1) can an employee ask to use paid leave before using FMLA qualifying leave so that the entitlement can be saved for later, (2) can the employer extend FMLA leave beyond 12 weeks.

The WHD clearly answered NO to both questions. Once the employer confirms that the leave is for an FMLA qualifying event, they must start to count it as such and ensure the employee is sent a written designation letter within 5 business days of making the determination. In addition, FMLA2019-1-A states that only 12 weeks per year may be designated as FMLA leave. The DOL does not care if the employer wants to give the employee more leave (see 29 CFR 825.700) , they just state that only 12 weeks of any leave provided can only be designated as FMLA leave.

This opinion letter represents a change in previous DOL views (provided in several former opinion letters published in 1994, 1995, and 1996) on FMLA policy as well as disagreement with a 9th circuit court opinion filed in February 2014, see Escriba v. Foster Poultry Farms, Inc. that allowed for the preservation of FMLA designated leave for a later use.

If you want more information on the Family and Medical Leave Act, I’ve provided a link to download an employer’s guide provided by the DOL.

How to Get the FMLA Employer Guide

FMLA Employer Guide

The new FMLA2019-1-A opinion letter effectively rescinds other older opinion letters on this topic:

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