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DOL Clarifies FMLA Designation Is Not Discretionary

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The Family and Medical Leave Act (FMLA) provides eligible employees with unpaid, job-protected leave for certain family and medical reasons. When an eligible emplo takes time off for an FMLA-qualifying reason, the employer is required to designate the absence as FMLA leave and provide written notice of the designation to the employee.

According to the FMLA regulations, employees are not required to mention the FMLA when making a request for leave in order to have the FMLA apply to their absence, they only have to provide the employer with enough information for the employer to determine that the reason is FMLA qualifying.

Employers have questioned whether it is permissible to allow employees to exhaust some or all of the employee’s available paid leave prior to designating the absence as FMLA-qualifying, even when the absence clearly qualifies as FMLA leave. A recent opinion letter from the Department of Labor (DOL) has answered their question. The opinion letter clarifies that
employers cannot delay designating paid leave as FMLA leave, even if the employee would prefer this delay. For example, an employee with a serious health condition may want to exhaust his or her available paid time off (PTO) or paid sick leave and then take unpaid leave for 12 weeks under the
FMLA.

According to the DOL, once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employer nor the employee can decline FMLA protection for that leave. This means that an employer may not delay designating leave as FMLA-qualifying, even if the
employee would prefer the delay.

The takeaway for employers: When an employer has enough information to
indicate that an employee’s need for time off may be for an FMLA-qualifying reason (for example, an employee tells his or her supervisor that he or she would like to request time off to care for a sick family member), the employer should begin the FMLA leave process by evaluating whether the employee’s time off request is covered by the FMLA — even if the employee does not mention FMLA. If the employee’s leave request is covered by the FMLA, the employer must designate the time off as FMLA leave and provide a written designation notice to the employee.