A DOL opinion letter clarifies that employers must designate FMLA leave once they learn that an absence qualifies for protection under the law. The opinion letter makes clear that neither the employer or employee may decline FMLA protection by substituting paid-time-off benefits or other leave options.
Employers are also obligated to provide notice to an employee of an FMLA designation within five business days of notification of leave-qualifying circumstances. The opinion letter also states that an employer is prohibited from designating more than 12 weeks of FMLA leave (or 26 weeks for qualified military caregiver leave). The opinion acknowledges employers can adopt more generous non-FMLA leave policies.
The opinion letter conflicts with a 2014 Ninth Circuit decision that allowed an employee to substitute paid time off for qualified FMLA leave to preserve FMLA leave for future use. Employers in the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) are technically still bound to the court’s opinion until it is overruled.
DOL opinion letters define how the agency would enforce relevant regulations in specific situations, however, they are not binding.
“Employers, particularly those outside the jurisdiction of the Ninth Circuit — who are required to provide FMLA leave — should look at their policies to be sure they are in alignment with this latest clarification,” said Randy Woehl, director of Bukaty HR Consulting.