Employers sometimes allow their employees to first take paid time off, or other accrued time, before “beginning the clock” for FMLA leave – often times through a Collective Bargaining Agreement (“CBA”), policy or practice. However, in a Department of Labor Opinion Letter issued on March 14, 2019, the Department clearly explained that an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave, even if the employee requests or desires such a delay.

The Opinion highlighted that once an eligible employee communicates a need to take leave for an FMLA-qualifying reason -- or once the employer becomes aware of such a reason -- “neither the employee nor the employer may decline FMLA protection for that leave.” Similarly, the Opinion detailed that FMLA protection cannot be expanded beyond the 12-week period (except in the case of military caregiver leave, which provides for 26 weeks). The Department further rescinded prior statements in previous opinion letters to the extent inconsistent with the Opinion.

While the FMLA allows for a voluntary employer program that provides greater family and medical leave rights to employees than the rights provided by the FMLA, the Opinion made clear that such a program may not delay FMLA leave designation or include or allow for FMLA protected leave beyond 12 weeks (or 26 weeks for military caregiver). Employers are reminded of the obligation to designate FMLA leave within five business days of having enough information to make the determination that leave for an eligible employee is FMLA-qualifying. The Opinion further discussed the requirement that employees take FMLA-qualifying leave upon an employer’s designation. In this regard, employees cannot try to “save” their FMLA protected time/leave and related group health insurance continuation rights until after they exhaust other paid time off.

Employers are advised to review their CBAs, policies and practices to be certain that they are consistent with this Opinion.