My reading of the DOL WHD opinion letter FMLA2019-3-A issued today, Sept 10, 2019

The DOL issued three opinion letters today, September 10, 2019. Today’s blog is a word for word reading of the full FMLA2019-3-A opinion letter including footnotes.

FMLA2019-3-A: Addressing whether an employer may delay designating paid leave as FMLA leave due to a collective bargaining agreement.  


Once your employer has enough information to determine that an employee’s leave request qualifies as FMLA leave, your employer must designate the leave as FMLA leave.

As noted in WHD Opinion Letter FMLA2019-1-A, once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave.

You have indicated that your employer now requires employees to substitute FMLA leave for accrued paid leave, which means that the leave is both FMLA leave and CBA-protected paid leave. If, pursuant to a CBA and other policies, your employer provides for the accrual of seniority when employees are utilizing accrued paid leave, it must permit employees to accrue seniority when they are substituting FMLA leave for paid leave. Failure to permit an employee to accrue seniority when the employee is substituting FMLA leave for accrued paid leave, if the employee would otherwise be permitted to accrue seniority when utilizing accrued paid leave, would constitute interference with the employee’s FMLA rights, in violation of section 105(a) of the Act. See 29 U.S.C. § 2615(a); 29 C.F.R. §§ 825.209(h), 825.220(c). Thus, your employer is properly applying the FMLA by requiring that FMLA-qualifying leave be designated as FMLA

29 U.S.C. § 2612(a), 29 U.S.C. § 2612(d)(2),
29 C.F.R. § 825.207(a), 29 C.F.R. §§ 825.300, 29 C.F.R. §§ 825.301, 29 C.F.R. § 825.300(d), 29 C.F.R. §§ 825.300(e), 29 C.F.R. §§ 825.30l(e),
WHD Opinion Letter FMLA2019-l-A,
2019 WL 1514982 at *2 (Mar. 14 2019)
citing 29 C.F.R. § 825.220(d), Strickland v. Water Works, Sewer Bd. of City of Birmingham, 239 F.3d 1199,
1204 (11th Cir. 2001)

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