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I’m Sick - I Need Leave - But I Don’t Want To Use FMLA Leave

How many times have you heard, as a Human Resources professional, an employee make the statement: "I need leave, but I don't want to use my FMLA leave"? In many cases, our initial response is to educate the employee and help them understand that Family Medical Leave Act (FMLA) leave is not bad and won't be used against them in the future. In fact, the primary purpose of the statute is to protect employees who need to take leave as a result of the birth or placement of a child, their own or a family member's health condition, to care for a covered service member with a serious injury or illness, or any qualifying exigency arising out of a family member's covered active military duty.

The statute's very strict notice requirements and timeline for responding to notice of FMLA qualifying events have been the subject of a multitude of U.S. Department of Labor (DOL) Wage and Hour Opinion Letters. The most recent opinion letter from March 14, 2019 (FMLA 2019-1-A) questioned "whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement." The answer to both questions is no.

May an Employer delay designating paid leave as FMLA leave?

This question addresses a hypothetical that many of us are familiar with when an employee presents with a qualifying condition. The employer notifies the employee of the employee's rights under the FMLA using the appropriate rights and responsibility and designation forms, but the employee does not complete the required paperwork. Instead, the employee "elects" to substitute any accrued paid leave that they may have and if such leave is insufficient, only then completes and submits the FMLA paperwork. The DOL has now clearly stated: "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." Accordingly, once the employer determines that the need for leave is FMLA-qualifying, "the qualifying leave is FMLA-protected and counts toward the employee's FMLA leave entitlement." Whether there is vacation or PTO time available and used concurrently does not matter. "[T]he employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation."

May an Employer permit employees to expand their FMLA leave beyond the statutory 12-week entitlement?

The DOL states that an employer cannot designate "more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave." The employer could have a program in place, however, that provides more than 12 weeks of leave (or 26 for military caregiver), but this additional time cannot be designated as FMLA leave. It is important for organizations that are creating and developing parental leave programs and policies to understand how FMLA designations will play a role in how these programs are instituted generally and how the leave under the different policies relate.

For more information on best practices for leave policies and their interaction with protected FMLA leave, contact a member of Verrill Dana's Labor and Employment Practice Group.

Topics: Leave Laws