Potential FMLA violations

Delaying and/or Expanding FMLA Leave

On March 14th the Department of Labor (DOL) released Opinion Letter FMLA 2019-1-A.  This letter addresses two Family and Medical Leave Act (FMLA) issues.

1. Can an employer delay designating paid leave as FMLA leave?
2. Can an employer allow employees to expand their FMLA leave beyond the federally required 12-week entitlement?

While a DOL opinion letter is specific to the employer’s specific questions and circumstances, the letter provides insight into the DOL’s approach for similar situations.  Courts are not required to follow an agency’s opinion letter, but opinion letters do provide reasonable justification for an employer’s course of action if challenged.

An FMLA Short-Course

Under the FMLA, eligible employees of covered employers are entitled to take unpaid, job-protected leave for specified family and medical reasons which includes up to 12 weeks of leave (or 26 weeks of military caregiver leave) in a 12-month period.  Employers are allowed to require employees to substitute paid leave, such as sick time or vacation time, for unpaid FMLA leave.  Once an employer has enough information to determine the leave is FMLA-qualified, the employer must designate the leave as FMLA and provide notice to the employee within 5 days.  Failure to provide such notice constitutes interference with an employee’s FMLA rights.

Don’t Delay Designation and Be Careful Expanding Entitlement

The opinion letter clearly states that an employer cannot delay the designation of FMLA leave nor designate more than 12 weeks (or 26 weeks of military caregiver leave) as FMLA leave.

The DOL allows an employer to be more generous with their leave policy.  However, only 12 weeks (or 26 weeks of military caregiver leave) can be designated as FMLA-protected leave.

If your organization intends to be more generous with leave time and you plan to continue health plan coverage, it is critical that you get the approval from your insurance carrier or stop-loss vendor to extend health coverage beyond the time period the FMLA requires.