By Matthew Cecil
On March 14, 2019 the Department of Labor issued an opinion letter considering whether employers violate the Family Medical Leave Act (FMLA) by expanding the amount of leave given to an employee before designating the leave as protected by the FMLA. This article considers two common FMLA pitfalls addressed in the Department of Labor’s March 14, 2019 Opinion Letter (FMLA2019-1-A): (1) communicating benefits to employees that exceed FMLA requirements; and (2) waiting to designate leave as protected by the FMLA.
Communicating Information to Employees About FMLA Benefits and Benefits That Exceed the FMLA
The FMLA requires employers to provide covered employees with up to 12 weeks of job-protected, unpaid leave each year for qualifying family and medical reasons (or up to 26 weeks for qualifying military caregiver leave).
Nothing in the FMLA prohibits employers from providing more leave than what is required under the FMLA. However, such additional leave is not necessarily protected by the FMLA. As an example of this, Federal Regulation 29 CFR 825.700(a) explains, “If an employer provides greater unpaid family leave rights than are afforded by FMLA, the employer is not required to extend additional rights afforded by [the] FMLA . . . to the additional leave period not covered by the FMLA.”
Generally, an employee is entitled to return to the same or an equivalent position upon the employee’s return to work from FMLA protected leave, with some exceptions. This job protection is not required for normal employer-provided leave (although it may be required by other laws, e.g. the Americans with Disabilities Act (ADA)). This means that an employer who provides two weeks of leave after FMLA leave has been exhausted is not granting an additional two weeks of FMLA job-protected leave. Instead, the employer is granting leave under the employer’s terms and conditions.
Although clear communication does not necessarily avoid complaints or litigation, it does foster a better work environment, strengthen employee/employer relations, and can provide clear evidence that may lead to a complaint’s quick resolution. Thus, when an employer grants an employee additional leave that is associated with or an extension of the employee’s FMLA-protected leave, then it would be best for employers to clearly communicate the protections, if any, associated with the additional leave. In this regard, employers must also be aware of whether other applicable laws, such as the ADA, could include job protection rights for the additional leave. Clear communication of this information allows the employee to decide whether to take the non-FMLA leave after considering the risks. For example, if an employer allows its employees to take 14 weeks of unpaid leave (12 weeks FMLA, two weeks non-FMLA) for qualifying circumstances, then the employer should be clear in explaining to the employee that the first 12 weeks is FMLA protected leave, including the employee’s right to reinstatement, and the last two weeks is general leave without any FMLA protections.
Waiting to Designate Leave as Protected by the FMLA
As discussed above, an employer may provide more leave than 12 weeks required by the FMLA. However, employers cannot remove any benefits afforded by the FMLA. Unfortunately, some well-intended policies may inadvertently violate the FMLA, which can result in costly litigation or liability for employers.
Generally, the FMLA only requires employers to provide unpaid job-protected leave for qualifying employees and circumstances. Federal Regulations also allow paid leave to be used when: (1) the employee has accrued paid leave and elects to use it while on FMLA leave, or (2) the employer has a policy that requires its employees to use their accrued paid leave while on FMLA leave.
Some employers believe, as explained in the Department of Labor’s opinion letter, that this regulation grants employers the ability to allow or require their employees to exhaust some or all of their accrued sick leave, vacation leave, or paid time off before designating the employee’s leave as FMLA protected. At first glance, this practice seems to expand the amount of leave an employee can take by two weeks. For example, John reports to his employer an FMLA leave qualifying event (e.g. serious illness). His employer allows him to use two weeks of paid leave before designating his leave as FMLA-protected. Subsequently, John uses his full 12 weeks of FMLA leave and returns to work. In total, John took 14 weeks of leave, but did the employer violate the FMLA?
The Department of Labor opinion letter explains that the employer likely violated the FMLA’s designation notice requirements. Under the FMLA an employer must give notice to the employee that the employee’s leave has been designated as FMLA-protected leave within five business days of the employer receiving enough information to determine whether the leave is being taken for an FMLA-qualifying reason. Moreover, allowing or requiring an employee to use paid leave before designating the leave as FMLA-protected may also violate the FMLA because, in the Department’s opinion, an employee cannot either voluntarily waive or be compelled to waive his FMLA rights. Such violations can result in employer liability for interference with or denying an employee’s rights under the FMLA.
Takeaways From the Department’s Opinion Letter
Given the Department’s recent guidance, when an employer is considering a policy that will provide its employees benefits in addition to those required by the FMLA, it is best to ensure the FMLA benefits are provided before or concurrently with any other benefit the employer grants. In this manner, the employer can be certain that it is complying with its legal obligations under the FMLA.
Matthew Cecil may be reached at mtcecil@hollandhart.com
