DOL opinion letter on FMLA timing muddies the waters

Employers must run FMLA leave concurrently with any paid leave an employee takes for an FMLA-qualifying condition, according to a new opinion letter from the U.S. Department of Labor.

THE LAW The FMLA provides eligible employees with up to 12 weeks per year of unpaid leave to care for their own serious health condition or that of a family member. Employees may also take time off for the birth or adoption of a child, as well as time to bond with that child afterwards.

Only leave taken for FMLA-qualifying reasons may be designated as FMLA leave.

Employers are free to develop policies that determine whether paid leave may be substituted for unpaid leave. They must administer those policies in a non-discriminatory fashion.

WHAT’S NEW An employer requested an opinion from the U.S. Department of Labor on a practice it had observed other employers doing—the legal equivalent of “asking for a friend.”


Those employers “voluntarily permitted employees to exhaust some or all available paid sick (or other) leave prior to designating leave as FMLA-qualifying, even when the leave is clearly FMLA-qualifying.” The practice essentially extended the employee’s job-protected leave by adding the amount of accumulated unpaid leave to the usual 12-week FMLA leave. The employer asked if this policy conformed with FMLA regulations.

The DOL essentially said, “No!” However, when it comes to the FMLA, things are seldom that simple.

The DOL’s interpretation of the regulations says that employers must designate FMLA leave within five business days of the start of the leave. In the letter’s scenario, the employer is allowing the leave to begin without investigating whether it is FMLA-eligible and then making that decision once the paid leave is exhausted.

While this practice may be beneficial to the employee and convenient for the employer, the DOL says it runs afoul of FMLA regulations because it constitutes a waiver of employee FMLA rights. In other words, those first days of leave, if taken for an FMLA-qualifying reason, are job-protected under the FMLA. According to the DOL, the yin and yang of the FMLA world requires job-protected leave to count against the 12-week entitlement.

The DOL went on to say that even if the employer and employee agree to the arrangement, it still violates the FMLA regulations. They state, “Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA.”

A different take

The DOL opinion letter contradicts a 9th Circuit Court decision. In that case, a poultry farm employee learned her father in Guatemala was very ill. She requested two weeks off to care for him, but asked that it not be counted against her FMLA leave. The employee had used FMLA leave 15 times before this episode.

Thirty days later, she returned, expecting to work. The company explained she had not reported in after the first two weeks and it considered her to have abandoned her job. She sued, claiming the leave should have been FMLA-protected even though she asked for the leave to not count against her 12-week entitlement.

A jury sided with the employer. On appeal, the 9th Circuit sided with the employer, too, stating that employees can affirmatively decline using FMLA leave.

It noted that “there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA.”

HOW TO COMPLY Employers now face two contradictory interpretations, each of which carry limited weight. The DOL opinion letter is only the department’s official position. While courts generally defer to executive agency interpretations, they are under no obligation to do so.

The 9th Circuit opinion only applies in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, and the territories of Guam and the Northern Mariana Islands.

The FMLA regulations appear to support the DOL’s interpretation, stating, “Once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must .”

Make the process work

Compliance requires addressing two stages in your FMLA process.

First, determine whether leave is being taken for an FMLA-qualifying reason. This involves obtaining medical certification. Make the designation within five business days of the start of the leave. If you lack the information necessary to designate the leave, provisionally designate the leave as FMLA-qualifying, pending receipt of certification.

Your policy on using paid leave must be clear and enforced consistently. Allowing employees to use paid leave and FMLA leave consecutively violates the DOL’s interpretation of the FMLA regulations.

Employers outside the 9th Circuit can require paid leave to be run concurrently with FMLA leave without violating either precedent or DOL interpretation.

If you have employees in a jurisdiction covered by the 9th Circuit, consult your attorney to determine how to proceed.