Department of Labor Issues FMLA Leave Opinion Letter

An opinion letter recently issued by the U.S. Department of Labor (DOL) states that employers cannot let workers use paid time off before taking leave under the Family and Medical Leave Act (FMLA).

The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid job-protected leave per year for specified family and medical reasons (or 26 weeks of military caregiver leave).  According to the DOL, once an employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. Therefore, if an employee with accrued paid leave qualifies for FMLA leave and decides to take their paid time off, then that time off counts towards their 12-week (or 26-week) FMLA entitlement.

This opinion is consistent with regulations requiring employers to provide written notice to an employee within five business days of learning that leave qualifies as FMLA leave.  While nothing prevents an employer from offering greater leave benefits to employees, the DOL made clear that such benefits do not expand the FMLA entitlement.

The DOL’s opinion contradicts a 2014 Ninth Circuit decision holding that workers could defer their FMLA leave and take paid vacation or sick time instead.  Covered employers in Oregon and Washington, which are part of the Ninth Circuit, should immediately change their practices to comply with the DOL guidance.  The full text of the opinion letter is available here.

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