U.S. DOL DECLARES EMPLOYEES CANNOT LEGALLY DECLINE FMLA LEAVE
Legal updates
U.S. Department of Labor Declares Employees Cannot Legally Decline FMLA Leave
March 18, 2019
In a long-overdue clarification, the U.S. Department of Labor (“DOL”) recently issued an opinion that addresses the practice of employees insisting that employers refrain from designating sick leave as FMLA-qualifying. Especially in the public sector, employees sometimes object to an employer’s designation of sick leave under the Family & Medical Leave Act (“FMLA”) in hopes of “saving” their 12 weeks of FMLA leave for a future anticipated illness or child-birth. To date, judicial guidance has been mixed with respect to an employer’s obligation to designate leave as FMLA, with at least one non-Illinois federal appellate court holding that an employee has the right to take paid sick and FMLA leave sequentially, which effectively expands an employee’s available leave beyond 12 weeks.
The DOL addressed this issue in an opinion letter issued on March 14, 2019. See U.S. Dep’t of Labor FMLA2019-1-A (Mar. 14, 2019). In that opinion, an unnamed employer asked whether it is legally permissible for an employer to allow an employee to decline the FMLA designation of sick leave in hopes of using his or her 12 weeks of leave at a later point in time. The DOL’s answer was an unequivocal “no.” According to the DOL, an employer “may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.” In other words, once the employer has “enough information” to conclude that an employee’s leave qualifies for FMLA, “the employer must . . . provide notice of the designation within five business days.”
The DOL also clarified that an employer is prohibited from designating more than 12 weeks of leave as FMLA. While an employer must observe any employment benefit program that provides greater family or medical leave rights beyond the FMLA, the DOL stated that leave beyond 12 weeks “cannot expand the employee’s 12-week . . . entitlement under the FMLA.”
This opinion may be an extremely helpful tool for managing employee medical leaves of absence. First, it arguably reinforces an employer’s authority to gather information about absences in order to be able to determine FMLA eligibility in the first instance. Second, the opinion may now provide legal support for stopping collective bargaining practices that have allowed employees to artificially string their FMLA and other leaves in sequential order (as opposed to having FMLA run concurrently with the usage of any paid leave).
At the same time, employers should consult legal counsel before fully applying the DOL opinion to their workplace practices. While courts, agencies and arbitrators often consider DOL opinions persuasive legal authority, such opinions can still be disregarded in certain circumstances. Even if the DOL opinion ultimately is adopted by judicial decision makers, the opinion may lead to inadvertent legal consequences in the collective bargaining context that should be reviewed with legal counsel.
Please call a Clark Baird Smith attorney for more information about this topic.
Created by Olive + Ash.
Managed by Olive Street Design. 