In a recent opinion issued by the federal Department of Labor (DOL), employers are cautioned not to delay designating an employee’s leave as protected by the federal Family & Medical Leave Act (“FMLA”). This means that as soon as an employee requests leave that qualifies for FMLA, FMLA protection is automatic. FMLA protections can’t be waived by the employee, and employers must not attempt to persuade an employee to waive FMLA protection for qualifying leave.
Practically speaking, this may create problems, particularly for the generous employer. Suppose, for example, that Jane informs her employer that she’ll be undergoing surgery that’ll require several weeks of recovery/treatment. Jane has two weeks of accrued paid time off and asks if she can use her accrued paid time off first, followed by her 12 weeks of available FMLA. According to DOL’s recent guidance, her employer must refuse this request.
Jane’s leave must be designated as FMLA-protected beginning on the first day of her leave provided her leave is for a qualifying reason (here, Jane’s leave probably qualifies for FMLA protection because of her serious health condition).
Keep in mind that employers aren’t permitted to extend the number of weeks (generally 12 weeks) that are available to an employee as FMLA-protected. An employee may be entitled to more than 12 weeks of leave if provided for by another benefit program, plan, State law or the employer’s own policy. But only the first 12 weeks will be FMLA protected.
This guidance doesn’t impact an employer’s ability to require employees to take paid leave concurrently with unpaid FMLA leave.
As always, these inquiries are fact-specific. If you have questions about complying with the FMLA, you should contact legal counsel for specific advice. The attorneys at The Coppola Firm regularly assist employers in navigating State and federal law, including the FMLA.