Some employers voluntarily permit employees to exhaust some or all available paid leave prior to designating the leave as federal Family and Medical Leave Act (FMLA) leave, even when the leave is clearly FMLA-qualifying. In March, 2019, the Acting Administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division issued an opinion letter stating that doing so violates the FMLA. The FMLA regulations require an employer to provide a written designation notice to an employee within, absent extenuating circumstances, five days after the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason. The Acting Administrator explained that failure to follow this notice requirement may constitute an interference with, restraint of or denial of the exercise of an employee’s FMLA rights. Once an eligible employee communicates a need to take leave for a FMLA-qualifying reason, neither the employer nor the employee may decline FMLA protection for the leave. Rather, the employer must provide notice of the designation within the required five-business-day time period. The leave then counts toward the employee’s 12-week FMLA leave period (or 26-week period for military caregiver leave), even if the employee substitutes paid leave for the unpaid FMLA leave.
Note: the DOL opinion letter applies only with respect to the federal FMLA. It does not apply to any state family and medical leave statutes. Employers should check to see what rule applies with respect to the state laws when designating periods of state family and medical leave.