The Department Of Labor Warns Against Extending FMLA Past Twelve Weeks

by Cody Brookhouser-Sisney
(402) 341-3070

A recent opinion letter issued by the Department of Labor (DOL) advised that employers may not allow employees to use paid time off before FMLA leave takes effect. This opinion letter was issued as a result of an employer inquiring whether it may delay designating leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement (26 weeks for certain servicemember situations). The federal courts had previously been split on those issues, which would generally arise when an employee stated that they did not want their leave categorized as FMLA leave, but rather wanted to use vacation and sick pay and then have their FMLA leave kick in. The employer cited an applicable FMLA regulation which stated, in relevant part, that the employer must observe any employee benefit or program that provides greater family and medical leave rights to an employee than those in the FMLA.

In its opinion, the DOL noted that an employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (26 for military caregiver leave) as FMLA leave. It specifically held that once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. That would be true even if the employee would prefer that the employer delay the designation. The DOL noted that it disagrees with the Ninth Circuit’s holding that an employee may use non-FMLA leave for an FMLA-qualifying reason and decline to immediately use FMLA so as to preserve FMLA leave for future use. Obviously, the DOL does not have the authority to “overrule” the Ninth Circuit, and so the opinion is still the law in that circuit, which covers California, Oregon and Washington, among certain other west coast states.

The DOL, as an aside, pointed out that under the regulations the employer is required to provide written “designation notice” to an employee within five business days after the employer has enough information to determine whether the leave was FMLA-qualified. They noted that the failure to follow that notice requirement may constitute an interference with, restraint on, or denial of the exercise of an employee’s FMLA rights.

The practical impact of the new DOL opinion letter is limited. Obviously, if an employer chooses to extend its employees’ leave rights beyond the 12-week maximum described in the statute, it would appear that the employer may do so. However, if leave is extended and the employee then claims that the employer failed to provide full reinstatement upon the conclusion of the “expanded” FMLA leave, it is the DOL’s opinion that the employee may not successfully sue its employer for doing so. It is specifically stated in the opinion letter that providing additional leave outside the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA. Short of that situation, however, an employee’s entitlement to, and potential cause of action under, FMLA leave ends 12 weeks after the situation involving the employee becomes known. Even in those circumstances, however, if the FMLA leave is expanded beyond the 12 weeks because the employee is allowed to put off its start, an employee could still bring a cause of action against the employer for failing to designate the start of FMLA leave in a timely fashion.


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