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Employers Cannot Delay or Extend FMLA Leave

March 27, 2019

In a recent Opinion Letter, the Department of Labor (DOL) clarified how leave under the Family and Medical Leave Act (FMLA) should be administered by employers.  Importantly, the DOL determined that employers are prohibited from delaying the designation of FMLA-qualifying leave, even where doing so would benefit the employee.

The FMLA allows eligible employees to take 12 weeks of unpaid, job-protected leave for specified reasons (increased to 26 weeks for military caregivers).  Generally speaking, employers may require employees, or employees may elect, to use available paid leave to cover part of the unpaid FMLA leave period.  To increase the amount of leave available, however, certain employers permit employees to delay the start of their FMLA leave until after the employees have exhausted their available paid vacation or sick time.  In such cases, for example, if an FMLA-eligible employee needed time off for an FMLA-qualifying medical condition and had a week of vacation available, the employer would allow the employee to take the week of vacation first and not designate the time off as FMLA leave (and, thus not start the 12-week “clock”) until the following week.

According to the DOL, this practice is not permitted under the FMLA.  The Opinion Letter states that, once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, the employer must “start the clock” on the 12 weeks.  If an employee uses paid leave to cover unpaid FMLA time, the paid leave must count toward the FMLA entitlement and cannot be used to expand that entitlement.

If you have any questions concerning the FMLA or how this Opinion Letter impacts your current policies and practices, please contact one of Honigman’s Labor and Employment attorneys.