The U.S. Department of Labor (DOL) recently issued an opinion letter considering whether employers violate the Family and Medical Leave Act (FMLA) by expanding the amount of leave given to an employee before designating it as FMLA-protected.
This article considers two common FMLA pitfalls addressed in the DOL’s opinion letter: (1) communicating benefits to employees that exceed FMLA requirements and (2) waiting to designate leave as FMLA-protected.
Communicating About FMLA Benefits
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 the Act requires, but additional leave isn’t necessarily protected. As an example, 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 on returning to work from FMLA-protected leave, with some exceptions. Job protection isn’t required for normal employer-provided leave—although it may be required by other laws, such as the Americans with Disabilities Act (ADA).
This means an employer that provides 2 weeks of leave after FMLA leave has been exhausted isn’t granting an additional 2 weeks of FMLA job-protected leave. Instead, it is granting leave under its terms and conditions.
Although clear communication doesn’t 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 you grant additional leave associated with or an extension of an employee’s FMLA-protected leave, you should clearly communicate the protections, if any, associated with the additional leave. In this regard, you also should be aware of whether other applicable laws—such as the ADA—could include job protection rights for the additional leave.
Clear communication allows the employee to decide whether to take the non-FMLA leave after considering the risks. For example, if you allow employees to take 14 weeks of unpaid leave (12 weeks FMLA, 2 weeks non-FMLA) for qualifying circumstances, then you should clearly explain that the first 12 weeks is FMLA-protected leave, including the employee’s right to reinstatement, and the last 2 weeks is general leave without any FMLA protections.
Waiting to Designate Leave as Protected by the FMLA
You may provide more than the 12 weeks of job-protected leave required by the FMLA, but you 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 requires you to provide unpaid job-protected leave only for qualifying employees and circumstances. Federal regulations also allow paid leave to be used when (1) the employee has accrued it and elects to use it while on FMLA leave or (2) you have a policy that requires your employees to use their accrued paid leave while on FMLA leave.
Some employers believe, as explained in the DOL’s opinion letter, this regulation grants them 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 leave as FMLA-protected. At first glance, this practice seems to expand the amount of leave an employee can take by 2 weeks.
For example, John reports to his employer an FMLA-qualifying event (e.g., serious illness). His employer allows him to use 2 weeks of paid leave before designating his leave as FMLA-protected. He uses his full 12 weeks of FMLA leave and returns to work. In total, he took 14 weeks of leave, but did the employer violate the FMLA?
The DOL’s opinion letter explains that the employer likely violated the FMLA’s designation notice requirements. Under the FMLA, you must give notice to the employee that his leave has been designated as FMLA-protected within 5 business days of 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 DOL’s recent guidance, when you are considering a policy that will provide your employees benefits in addition to those required by the FMLA, it’s best to ensure the FMLA benefits are provided concurrently with any other benefit you grant. In this manner, you can be certain you are complying with your legal obligations under the FMLA.
Matthew Cecil may be reached firstname.lastname@example.org.