Earlier this year, the Department of Labor made clear in an opinion letter that neither an employee nor an employer may decline FMLA leave where an eligible employee is absent for an FMLA-qualifying reason.  As the DOL noted in this March 2019 opinion letter, this is particularly true even where the employee would prefer that the employer delay the designation of FMLA leave.

This week, the DOL doubled-down on that opinion letter.

Notably, the DOL’s earlier missive to the masses failed to address how an employer should administer FMLA leave in a union environment where a collective bargaining agreement specifically allows the employee to use paid leave first and then use FMLA leave at a later time only after paid leave is exhausted.

In a September 10, 2019 opinion letter, the DOL seemingly cleared up this issue.  Echoing its earlier opinion letter, the DOL declared that an employer still may not delay designating paid leave as FMLA leave even if the delay otherwise complies with a collective bargaining agreement.

The bargaining agreements in question provided paid leave for family and medical reasons that arguably would constitute FMLA leave, but it required (or at least allowed them) to use paid leave before taking FMLA leave.   The DOL, however, would have none of this:

As noted in [the March 2019 opinion letter], once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave . . . this is the case, for instance, even if the employer is obligated to provide job protections and other benefits equal to or greater than those required by the FMLA pursuant to a CBA or state civil service rules.

The DOL’s latest opinion letter again is unequivocal: Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.

Insights for Employers

Granted, this opinion letter applies to unionized work environments and likely has a far greater impact on public-sector employers, which often allow their employees to use accrued paid leave before utilizing FMLA.  Nevertheless, the DOL makes clear several principles:

  1. Once the employer has enough information to determine that an employee’s leave is covered by the FMLA, it must designate the leave as FMLA leave even where a collective bargaining agreement states otherwise.  Got it?  Ok, I won’t beat this dead horse any further . . .
  2. Employers surely can provide for more generous leave policies, but those policies still must comply with the FMLA.  And as we see here, additional paid or unpaid leave must follow FMLA leave.

Still, there is some question as to whether an employee actually is harmed when they are allowed to use paid leave first and FMLA leave afterward.  When you really think about it, what is the DOL really looking to accomplish here?