Miller & Martin PLLC

In the latest Department of Labor (DOL) Opinion Letter, issued on March 14, 2019, the question posed to the DOL was, “May we allow employees to use some or all of their paid leave before using FMLA leave in connection with an FMLA-qualifying condition?”

The DOL’s answer was, “No.” “Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.”

This explanation also clarifies (and contradicts a 2014 Ninth Circuit Court of Appeals opinion, Escriba v. Foster Poultry Farms, Inc.) that employees cannot “choose” not to use FMLA leave once they put their employer on notice of an FMLA-qualifying event and begin taking time off for it.

The employer referenced in the new Opinion Letter most likely thought they were doing “a nice thing” by allowing employees to use their paid leave then permitting them in effect to “stack” their FMLA leave on top of their paid leave relating to an FMLA-qualifying condition. But the DOL’s concern with this approach is that some employers could try to avoid designating FMLA-qualifying time off as FMLA leave by telling employees something along the lines of, “Hey, why don’t you just use your paid sick leave [and/or] vacation to cover this situation for now, and we’ll just ‘see how it goes.’ If things ‘get serious’ and you exhaust all your paid leave, then we’ll go through all that FMLA paperwork stuff and designate the time off as FMLA leave,” and thereby could deprive eligible employees of FMLA leave.

The DOL previously expressed a similar concern regarding employers “allowing” employees to use paid leave before using workers’ compensation or short-term disability benefits during an FMLA leave. This was the reasoning behind the DOL FMLA regulation 29 C.F.R. § 825.207(d) and (e), which provides that employers may not require employees to use paid leave during an FMLA leave if they qualify for workers’ compensation or short-term disability benefits. As the DOL was concerned employers could use their ability to otherwise require employees to use their paid leave as part of an FMLA leave (an option employers still have after this new Opinion Letter, by the way) as a way to try to avoid or delay employees filing for workers’ compensation or short-term disability benefits during an FMLA leave.

Takeaway

So, what the new DOL Opinion Letter means is, whether you as the employer “want to” or not, or whether the employee “wants you to” or not, if you have notice of an FMLA-qualifying situation, you MUST designate the time off as FMLA leave. You cannot “wait” to do so until the employee uses some or all of his/her paid leave to cover time off which is necessitated by an FMLA-qualifying event.

The next question we anticipate employers asking is, “What if we give employees the FMLA paperwork when we hear about a potentially FMLA-qualifying situation and they don’t return it – what do we do then?” 

Unfortunately, the DOL did not answer this question, since this was not part of the employer’s question that formed the basis for the new Opinion Letter. They were only asking whether it was “ok” to allow employees to “stack” their paid leave on top of their FMLA leave.

FWIW, my advice to clients whenever I get this “what if they never return the paperwork” question is unlike FMLA leave designation, the decision to require paperwork is discretionary with the employer per 29 C.F.R. § 825.305, which provides that:

“[a]n employer may require that an employee's leave to care for the employee's covered family member with a serious health condition, or due to the employee's own serious health condition that makes the employee unable to perform one or more of the essential functions of the employee's position, be supported by a certification issued by the health care provider of the employee or the employee's family member. An employer may also require that an employee's leave because of a qualifying exigency or to care for a covered servicemember with a serious injury or illness be supported by a certification, as described in §§ 825.309 and 825.310, respectively.” (Emphasis supplied)

So, this means if you have objective information that the employee was off work due to an FMLA-qualifying event – for example, if they come back to work with pictures of their new baby or telling everyone about their painful knee surgery, etc. – you could still designate their time off as FMLA leave, even if they do not return the FMLA paperwork. You are not required to do so, however – at least not until we receive a new Opinion Letter or FMLA court decision saying otherwise. As 29 C.F.R. § 825.306(e) still provides, “[i]n all instances in which certification is requested, it is the employee's responsibility to provide the employer with complete and sufficient certification and failure to do so may result in the denial of FMLA leave.” (Emphasis supplied)

Employers need to develop consistent practices on this point either way. So, if you decide you are only going to designate a leave as FMLA-qualifying if you receive the FMLA certification forms back, you would need to do so regarding all employees – the “nice, sympathetic ones” as well as the “not-so-nice” ones.

A final word regarding this alert is DOL Opinion Letters do not carry the same authority as a law, a DOL regulation or even a court case, so adventurous employers may decide to ignore this new DOL Opinion Letter until you receive a definitive court ruling on this issue or the DOL issues new FMLA regulations. Courts may use these Opinion Letters to guide them in ruling in FMLA cases, however. And the DOL follows them in interpreting the FMLA. This is the reason we are making you aware of this one and generally advise clients to follow them.

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