DOL Warns Employers Not to Delay Designating FMLA Leave

March 18, 2019

The U.S. Department of Labor (DOL) has issued a new Opinion Letter reinforcing the prohibition against an employer delaying the designation of Family and Medical Leave Act (FMLA) leave. Citing the regulations interpreting the FMLA, the DOL explained that when 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. Once the employer has enough information to determine whether a leave is being taken for a FMLA-qualifying reason, the employer hasfive business daysto provide a written “designation notice” to an employee, absent extenuating circumstances. Failure to provide that notice may constitute an interference with the employee’s FMLA rights in violation of the law. Therefore, the DOL instructed that an employer cannot allow its employee to use paid leave or other leave before designating FMLA-qualifying leave as FMLA leave. Of course, the employer may require the employee to “substitute” accrued paid leave to cover any part of the FMLA unpaid leave period, but it will run concurrently with FMLA leave, not precede it.