When a worker needs leave for a qualifying reason, neither the employee nor the employer may decline FMLA protection.
In a recent letter, the U.S. Department of Labor (DOL) has clarified that employers can’t delay designating leave as Family and Medical Leave Act (FMLA) leave, even if the employee requests this delay. The Letter states, “Once an eligible employee communicates a need to take leave for a FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.” This clarification is significant, as some employers have chosen to leave the decision about whether to designate leave as FMLA to employees.
Some other key points in the letter:
- An employee’s entitlement to benefits other than group health benefits, such as the accrual of seniority, during a period of FMLA leave is determined by the employers’ established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as relevant).
- If the employer’s established leave policies do not permit the accrual of seniority during an unpaid leave of absence, for instance, these same policies would apply to unpaid FMLA leave.
- If the employer’s established leave policies provide for the accrual of seniority during a paid leave of absence, then the employer must permit, consistent with its policies, the accrual of seniority during any portion of FMLA leave that is substituted for paid leave, i.e., during FMLA leave that runs concurrently with paid leave.
- Once an employer has enough information to determine that an employee’s leave request qualifies as FMLA leave, the employer must designate the leave as specific to FMLA.
- Failure to permit an employee to accrue seniority when the employee is substituting FMLA leave for accrued paid leave, if the employee would otherwise be permitted to accrue seniority when utilizing accrued paid leave, would constitute interference with the worker’s FMLA rights.
- Employers may adopt, retain, or amend leave policies, including policies that provide more generous leave, as long as they comply with FMLA.
Manager/supervisor training on FMLA is key, as the determination that time off is FMLA leave remains with the employer. It is important that team leaders understand how the law works to ensure regulatory compliance.
