Earlier this week, the Department of Labor (DOL) provided an opinion on whether an employer may delay designating paid leave as leave under the Family and Medical Leave Act (FMLA) when the delay complies with a collective bargaining agreement (CBA) and the employee prefers that the designation be delayed. DOL concluded that, notwithstanding the terms of a CBA or an employee’s preference, the employer was required to designate, without delay, any FMLA-qualified leave as FMLA leave.
The opinion was requested by a public agency whose CBA provided job protection to employees when they used employer-provided paid leave for certain medical and family reasons. Under the CBA, employees were permitted to delay taking unpaid leave, including unpaid FMLA leave, until after the CBA-protected accrued paid leave was exhausted. The employer asked whether this practice was permissible or whether it was required to designate leave as FMLA leave as soon as it had sufficient information to determine that an employee’s leave request qualified as FMLA leave.
The FMLA provides eligible employees of covered employers with up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons. The FMLA provides that an employer may require, or the employee may elect, to "substitute" accrued paid leave to cover any part of the unpaid FMLA entitlement period. Under the FMLA, "[t]he term substitute means that the paid leave provided by the employer ... will run concurrently with the unpaid FMLA leave."
Within five business days of learning of a FMLA-qualifying leave request from an employee, an employer must provide critical information to the employee about the FMLA, e.g., whether the employee is eligible for FMLA leave, whether the employee has to obtain a medical certification, and whether the employee has to make arrangements for health insurance to continue. The employer is responsible in all circumstances for designating leave as FMLA-qualifying and giving notice of the designation to the employee in writing. Failure to follow the FMLA's notice requirements may constitute an interference with, restraint on, or denial of the exercise of an employee's FMLA rights.
In light of these requirements, DOL opined that once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave. The DOL held that this is the case even if the employer is obligated to provide job protections and other benefits equal to or greater than those required by FMLA pursuant to a CBA.