In a recent Opinion Letter, the Department of Labor held that when an absence qualifies for leave under the Family and Medical Leave Act (FMLA), the employer must designate the leave as FMLA leave. An employee may not delay the start of leave under the FMLA and use employer-paid time off first.
The Family and Medical Leave Act entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for certain family and medical reasons. An employer may require, or an employee may elect, to use accrued, paid time off to cover part of the unpaid FMLA absence.
The Department of Labor, in its Opinion Letter, confirmed that an employer must designate leave that is FMLA-qualifying as FMLA leave. An employer is prohibited from delaying the designation of the leave and once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee or the employer may decide that the leave will not be counted under the FMLA. An employer is also not allowed to designate more than 12 weeks of leave as FMLA leave.
Employers should be aware of this guidance from the DoL and be sure to properly designate leave taken by employees as FMLA-qualifying if it is, in fact, a leave covered by the FMLA. A copy of the opinion letter may be access by clicking here.