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DOL: Employees Can't Use Up Paid Time Off Before Using FMLA Leave

The U.S. Department of Labor recently took a new position on the timing of leave taken under the federal Family and Medical Leave Act (FMLA). Many employers allow or even require workers to use up their sick time and other paid time off before initiating an FMLA leave. In a March 14 opinion letter, the DOL said that practice is improper. FMLA leave must begin to run within five days of the employer learning that leave is being taken for reasons covered by the FMLA.

The federal FMLA guarantees all covered employees up to 12 workweeks of unpaid, job-protected leave annually for certain family and medical purposes. Group health insurance is to be maintained during the leave period.

FMLA leave can be taken for:

  • Bonding with a new baby, adopted child or foster child
  • To care for a serious health condition when the employee is unable to work
  • To care for an immediate family member's serious health condition
  • For qualifying exigencies of an immediate family member's qualifying military service

In addition, 26 weeks per year of unpaid, job-protected leave can be taken to care for certain military service members' serious injuries or illnesses.

The leave can be taken all at once or over time.

DOL opinion letter says paid, unpaid FMLA leave run concurrently

In its opinion letter, the Labor Department stresses that employers are required to issue an FMLA designation notice to the employee, usually within 5 days of having "enough information to determine whether the leave is being taken for an FMLA-qualifying reason." Failure to provide this notice, the department says, could "constitute an interference with, restraint on, or denial of the exercise of the employee's FMLA rights."

If the employer were to allow or require employees to use all their paid time off before the FMLA leave could begin, this would be an impermissible extension of the designation period, the DOL says. Employees are unable to waive their FMLA rights, and employers cannot choose whether FMLA-qualifying leave is actually FMLA leave or not.

As a result, when employers offer paid time off for FMLA-qualifying purposes, the paid and unpaid time run concurrently, starting from five days, at the latest, from the time the employer understood the leave would qualify for FMLA treatment.

Finally, employers are prohibited from designating more than 12 weeks of leave (or 26 for military caregivers) as FMLA leave each year.

The DOL's opinion letter conflicts with a Ninth Circuit appellate decision, so this interpretation may not apply to states in that circuit.

If you have questions about this new interpretation of the timing of FMLA leave versus paid leave, contact an experienced employment law attorney.

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