By Lillian Hartgrove, State Board of Education Chairman
Special to the UCBJ

On March 14, 2019, the U.S. Department of Labor (DOL) issued an opinion letter on the issue of whether an employer can require an employee who is absent from work (for a reason that qualifies for FMLA leave) to use FMLA leave – even if the employee didn’t ask to use it or doesn’t want to use it. DOL opinion letters from a decade ago stated that employers could do so. More recently, however, some courts held that employees could decline to use FMLA leave in certain situations so as to retain their paid time off for use in the future. 

The DOL’s March 14 opinion letter states that an employer can designate an employee’s absences as FMLA leave even if the employee doesn’t want to use FMLA leave and is willing to take unpaid time off. This time, unlike previously, the DOL also declared that an employer mustdesignate FMLA-qualifying time off as FMLA leave, even if it was willing not to do so as a favor to the employee. Scenarios where this may occur include where an employee has scheduled surgery for later in the year, or an employee plans to give birth later in the year,and they want to save their FMLA leave for that purpose rather than using it for some other FMLA-qualifying reason in the near term. 

The DOL opined that although an employer must designate an employee’s FMLA-qualifying time off from work as FMLA leave, it does not need to require the employee to use his/her accrued paid time off/vacation while on FMLA leave. If both employer and employee agree, an employee’s paid time can be reserved for later usage. The employer and employee cannot agree, however, to have the employee use their FMLA-qualifying paid time off without having that count towards their 12 weeks of FMLA leave. So, the DOL opinion, if followed, removes some flexibility for employers and employees who are willing to structure things to benefit the employee’s situation. In that regard, the opinion is not entirely employer-friendly. It suggests that an employer can never allow employees to be absent for an FMLA-qualifying reason without designating their absence as FMLA leave. 

Although the March 14 opinion letter sets forth the DOL’s views, it is not necessarily the final word. It’s possible that courts may disagree and allow employees and willing employers to not designate all FMLA-qualifying absences as such. Sometimes, it’s not even clear whether an absence qualifies for FMLA leave, although in a borderline case it’s doubtful the DOL would actually sue an employer for not requiring employees to use FMLA leave. In any event, the DOL opinion letter is a clear signal that employers may have much less leeway in allowing employees to choose the timing or usage of their FMLA leave of absence, leaving both employers and employees more restricted for the change.  

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