When can a worker take leave under the Family Medical Leave Act?

April 8, 2019

Providing leave under the Family Medical Leave Act can be tricky for some employers.

Workers sometimes will refuse to take leave under the law even if they qualify for it: They may want to save their job-protected leave and simply use sick or other paid benefits from their employer — then later use the unpaid 12 weeks of FMLA leave.

Under the act, employers can require that paid leave run concurrent with job-protected unpaid leave under the law.

Most employers therefore require eligible workers to use FMLA leave concurrent with paid leave. Otherwise, the employee can be out longer than 12 work weeks.

However, in 2014, the 9th U.S. Circuit Court of Appeals ruled that an employee can decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked the protection.

This ruling left employers confused on whether it can require an employee to take FMLA leave concurrent with paid leave.

Fast forward to 2019, where the Labor Department recently issued an opinion letter clarifying the department’s position on whether an employee can control when he or she will take leave under the act.

The Labor Department was asked whether an employer may delay designating paid leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement. The employer told the department it voluntarily permitted workers to exhaust some or all available paid sick (or other) leave prior to designating leave as FMLA-qualifying, even when leave is clearly allowed under the law.

The department clarified that the employer’s failure to designate the qualifying leave as FMLA violates the law.

The employer’s responsibility under the law, according to the department, is to designate leave by providing a written designation notice to employees within five business days after the employer has “enough information to determine whether the leave is being taken” for a FMLA-qualifying reason.

In other words, once an employee tells the employer that he or she needs time off for something such as surgery or migraines, the employer must provide the designation notice to the worker within five days, even if the employee does not ask for FMLA leave.

“[A]n employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave,” the department wrote. “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.”

The department said that once an employer determines the leave is FMLA-qualifying, “the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement.”

The employer cannot provide more leave under the Family Medical Leave Act than provided under the law, the department said. “If an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week FMLA entitlement and does not expand that entitlement.”

This decision provides clarity for employers.

For an employee to take extended paid leave or even extended intermittent leave, employers should require that workers provide medical certification consistent with the FMLA. If the worker suffers a serious health condition or otherwise qualifies for leave under the FMLA, the employer should designate the time away for that qualifying reason as FMLA.

Of note, if the employee requires more than 12 work weeks for a serious health condition after FMLA expires, the worker may be entitled to additional protected leave as a reasonable accommodation under the Americans with Disabilities Act, which is a different analysis depending on whether the employee also has a qualifying disability.