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U.S. Department of Labor Issues New Guidance on Designation of FMLA Leave by Employers

The Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to twelve weeks of unpaid leave. It is the only federal statute that provides medical leave nationwide, and it only provides unpaid leave. New Jersey is one of five U.S. states, plus the District of Columbia, to provide paid leave for new parents and for certain other purposes. The U.S. Department of Labor (DOL) revised its guidance on the accrual of FMLA leave by employees in an opinion letter released in March 2019. This guidance bars employers from delaying the designation of accrued leave as FMLA leave. It might also affect how and when employees can take leave under the FMLA or another program. If you need to take paid leave and wonder if doing so is permissible under state law, you should reach out to a New Jersey employment law attorney at your earliest convenience.

Employers with at least fifty employees must provide FMLA leave. 29 U.S.C. § 2611(4)(A). In order to be eligible, employees must have worked for the employer for at least one year, and they must have actually worked at least 1,250 hours during that time. Id. at § 2611(2). Unpaid leave is available for up to twelve weeks per twelve-month period, for reasons like the birth or adoption of a child, serious illness or injury, or caring for an ill or injured family member. Id. at § 2612(a)(1).

If an employer provides paid leave to its own employees, but the total amount of leave available under the program is less than twelve weeks, the FMLA only requires that employer to provide enough unpaid leave to bring the total amount of leave to twelve weeks. Id. at § 2612(d). For example, if an employer provides six weeks of paid family leave, the FMLA would only require it to provide an additional six weeks of unpaid leave.

The question posed to the DOL was, in essence, whether employers could delay designating accrued leave as “FMLA leave” in order to allow employees to take more than the twelve weeks authorized by statute. The DOL described the scenario as allowing employees to exhaust accrued paid leave before designating leave as qualifying under the FMLA. In its letter, designated FMLA2019-1-A, the DOL concluded that employers may not do this.

DOL regulations state that employees cannot waive their rights under the FMLA, nor may employers induce them to waive their rights. 29 C.F.R. § 825.220(d). Employers are required to notify employees that accrued leave is FMLA-qualifying within days of making that determination. This, in the DOL’s opinion, does not allow for delaying an FMLA designation. The opinion letter notes that employers may provide more than twelve weeks of leave, but finds that the twelve weeks of FMLA leave must begin as soon as qualifying leave is accrued. A subsequent opinion letter, FMLA2019-3-A, applies similar findings to medical leave authorized by a collective bargaining agreement.

The DOL’s guidance is not necessarily binding on courts, which have reached a variety of holdings on similar questions. The opinion letter directly contradicts a Ninth Circuit ruling from 2014, which found that employees may decide to exhaust other forms of leave before taking FMLA leave. A 2015 decision by the Texas Supreme Court, on the other hand, cited DOL regulations in holding that an employee’s FMLA-qualifying leave begins as soon as they take time off of work.

The Resnick Law Group’s skilled and experienced employment law attorneys are available to assist you in your New Jersey or New York FMLA dispute. To schedule a confidential consultation to discuss your rights and options, please contact us today online, at 973-781-1204, or at 646-867-7997.

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