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Employers Cannot Wait Until After Paid Leave Has Been Exhausted To Start FMLA Leave

Published by and on May 17, 2019

The U.S. Department of Labor (DOL) released an opinion letter stating that leave pursuant to the Family and Medical Leave Act (FMLA) must start as soon as an employer is aware the leave is for an FMLA-qualifying reason.

In addition to the unpaid leave provided by the FMLA, employers commonly provide paid leave that can be used for medical or health related reasons. In fact, certain state and local laws require employers to provide paid sick leave, apart from FMLA leave. Employees may prefer to use some or all of their paid leave before starting FMLA leave. The DOL, however, has made clear in a recent opinion letter that employers cannot voluntarily allow employees to exhaust some or all of their available paid sick leave prior to designating leave as leave under the FMLA.

Therefore, when an employer determines that leave is for an FMLA qualifying reason, the employer must designate the leave as FMLA leave. The employer cannot delay designating leave as FMLA leave, even if the employee requests to use paid leave before commencing FMLA leave. Rather, if an employer allows an employee to use paid leave for an FMLA-qualifying reason, the leave must run concurrently with—and not in addition to—FMLA leave.

The DOL explicitly notes its disagreement with the Ninth Circuit’s holding in Escriba v. Foster Poultry Farms, Inc. In this case from 2014, the employer allowed the plaintiff to elect to take vacation time for an FMLA-qualifying reason and to decline to begin FMLA-protected leave. The Ninth Circuit recognized that the FMLA does not expressly state whether an employee may defer FMLA rights and looked to the FMLA regulations for guidance. The Ninth Circuit held that the employee may use vacation time and decline FMLA leave for an FMLA-qualifying reason.

The DOL’s opinion letter does not prohibit employees from providing additional paid or unpaid leave once FMLA leave is exhausted. While this additional leave would not be protected under the FMLA, it may be protected under other laws, such as state leave laws or the Americans with Disabilities Act (ADA).

Welter Insight

Employers may be tempted to delay the start of FMLA leave, especially upon an employee’s request. While the DOL’s opinion letter does not carry the weight of a law or court decision, courts will often look to DOL opinion letters as guidance in interpreting laws such as the FMLA. Employers should also be aware of what courts in their jurisdiction have said on the issue. Only time will tell, however, if courts—including the Ninth Circuit—will follow the DOL’s conclusion that employees cannot delay FMLA protection. In the meantime, employers should be aware of what courts in their jurisdiction have said on the issue and should review their leave of absences policies to ensure compliance with the applicable law.

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