Employers can’t delay designating Family and Medical Leave Act (FMLA) qualifying leave as FMLA leave, according to a recent Department of Labor (DOL) opinion letter (FMLA 2019-1-A). Once an employee communicates the need to take leave for an FMLA qualifying purpose, neither the employee nor the employer can decline FMLA protection for that leave, even if the employee would prefer a delay. After ascertaining the employee’s need for qualifying leave, the employer must notify the employee of the FMLA designation within five business days.
The FMLA entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage as if the employee had not taken leave. Eligible employees are entitled to:
─ To bond with a new child within one year of birth or placement with the employee for adoption or foster care
─ To care for the employee’s spouse, child or parent who has a serious health condition
─ When an employee’s own serious health condition prevents the employee from performing the essential functions of his or her job
─ For qualifying exigencies that may arise when the employee’s spouse, son, daughter or parent is a covered military member on “covered active duty” or has been notified of an impending call or order to active duty
To be eligible for FMLA leave, employees must have worked with the same employer for at least 1,250 hours in the 12 months before starting the leave and must work at a location with at least 50 employees or where 50 employees work within 75 miles.
Many employers provide employees with paid time off, including vacation, sick, disability, parental or caregiver leave. Leave taken under these employer programs often, but not always, runs concurrently with any available FMLA leave. While employers can offer leave benefits that are more generous than those required by the FMLA, the guidance clarifies that FMLA leave can’t be deferred while other paid leave is exhausted — if the employee is FMLA eligible, then the leave qualifies under the FMLA and must count against the time available for protected leave.
Some state family and medical leave laws provide partial wage replacement for leave to bond with a new child, care for a seriously ill family member or attend to the employee’s own disability or serious health condition. Not all the provisions in these law cleanly align with the FMLA. However, to the extent an employee is eligible and the leave qualifies under both state and federal laws, leave must run concurrently.
A few state laws require employers to provide leave for circumstances not covered by the FMLA. For example, a recently enacted Maryland law (HB 1284) grants protected leave to employees who make organ or bone marrow donations, but the leave may not be taken concurrently with federal FMLA leave. California has a similar law (Lab. §1510(g)).
The new guidance seems to prohibit delaying FMLA in favor of the state protection if the leave would qualify under both laws. Yet final FMLA rules say the FMLA doesn’t supersede or preempt provisions of state or local laws (whether substantive or procedural) that give employees greater rights than the FMLA. Employers governed by state laws that potentially conflict with the federal guidance may want to work with legal counsel to be certain of compliance.
Mercer Law & Policy Resources
Other Mercer Resources