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U.S. Department of Labor Finds That an Employer Cannot Delay Designating Paid Leave As FMLA Leave

On March 14, 2019, the United States Department of Labor (“DOL”) issued guidance finding that an employer may not delay the designation of Family and Medical Leave Act (“FMLA”) leave or designate more than twelve (12) weeks of leave as FMLA leave.

This issue arose because some employers would permit employees to use paid leave prior to designating qualifying leave as FMLA leave. The DOL determined that employers may not delay designating leave as FMLA leave even if the employee would prefer that the employer do so. The DOL further determined that neither the employee nor the employer may decline FMLA protection if an employee’s leave is for an FMLA-qualifying reason, even if the employee wishes to use some other kind of leave in its place – i.e., sick leave, personal leave, etc.

Additionally, the DOL determined that employers are prohibited from designating more than twelve (12) weeks of leave as FMLA leave. Therefore, the employee’s paid leave will count towards the employee’s twelve (12) week FMLA leave entitlement even if an employee decides to use paid leave instead of unpaid FMLA leave.

To read the DOL’s guidance, click here.

Updated September 13, 2019: Please read our subsequent blog entitled, “Department Of Labor Opines That FMLA Leave Cannot Be Delayed Even Under Collective Bargaining Agreement,” here.

Authors: Matthew John Markling and the McGown & Markling Team.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

Authors: Matthew John Markling and the McGown & Markling Team.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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