FLMA Questions Finally Answered

8.1.2019

Can Employees Decline to Use FMLA?

A recent opinion letter from the U.S. Department of Labor Wage and Hour Division expresses unequivocally that an employer may not delay designating leave as FMLA leave, even where the delay is to permit the employee to exhaust available paid sick or other paid leave prior to the start of FMLA.  Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline to classify the leave as FMLA.  The employer must provide notice of the determination to the employee within five business days of determining the leave qualifies for FMLA. The U.S. Department of Labor stated that an employer may not delay designating the leave as FMLA, even if the employee would prefer that the employer delay the designation.  The Department of Labor’s current clear cut guidance is that: once an employer confirms that an absence qualifies for FMLA leave, the employer is absolutely obligated to designate the leave as such. 

Must FMLA Come First?

The opinion letter also advised that when an employee has multiple reasons for an FMLA absence, an employer can require the employee to use FMLA leave (until exhausted) for all of the absences and, in fact, must do so.  If an employee has paid leave available, an employer may allow the employee to choose between using the paid leave concurrently with FMLA or preserving it until after their FMLA leave is exhausted, but an employer may not allow the employee to use the paid leave first and subsequently use the FMLA leave.

Employers should be mindful  that after the conclusion of an FMLA leave, there may be an obligation, if the leave is due to the employee’s own disability, for additional leave under reasonable accommodation laws.

If you are an employer with questions about FMLA or an employee leave situation, contact Tracy Armstrong or any Wilentz employment lawyer at 732-352-9858.

Tags: Family and Medical Leave ActU.S. Department of Labor (DOL)

BLOG DISCLAIMER

The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services.  Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness.  The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  Readers should not act upon this information without seeking professional legal counsel.

This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk.  We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability.  Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein.  We will remove a link to any site from this blog upon request of the linked entity.

We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.

If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com.  One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.

Sign Up

Tracy Armstrong Photo

Tracy Armstrong
Co-Chair, Employment Law Team
Shareholder
732.855.6020