The Department of Labor (DOL) on occasion will issue opinion letters to clarify employer’s obligations under various federal employment laws. These DOL opinion letters help employers to understand their obligations and can be relied upon to establish a “good faith” defense against certain federal claims.
On March 14, 2019, the DOL issued an opinion letter regarding FMLA leave and its coordination with other employer leave provisions. The DOL clarified that if an employee’s leave taken for medical reasons is deemed FMLA qualified, the employer must then designate the leave as FMLA leave within five business days and may not delay such designation even to accommodate or benefit its employee. In other words, if an employee requests to take paid PTO leave and delay the designation of qualified FMLA leave until after the paid PTO is exhausted, per this opinion letter, once an eligible employee communicates a need to take leave for a qualified FMLA reason, neither the employer nor the employee may decline FMLA protection for that leave. Thus, when an employer deems that leave is for a qualified FMLA reason, the leave counts toward the employee’s FMLA leave entitlement.
The employer may instead allow the employee to “stack” the FMLA leave and paid leave by allowing the employee to take the FMLA leave unpaid and to use any available paid leave upon exhaustion of the FMLA entitlement. Alternatively, the employer may require employees to utilize available paid leave concurrently with FMLA leave, thus paid leave counts toward the FMLA leave entitlement, and vice versa.
Employers should review applicable state leave laws that may offer additional or different benefits that may cause the DOL opinion letter to contradict existing precedent. For example, this opinion letter contradicts the 2014 Ninth Circuit Court’s case Escriba v Foster Poultry Farms, Inc. which found that an employee could affirmatively decline to exercise their FMLA rights, even when they clearly would have qualified, in order to preserve the FMLA rights for future use. Those employers in the Ninth Circuit jurisdiction (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) may want to consult their legal counsel prior to relying on this opinion letter.
It is intended for Diversified Group’s medical plan document language to correspond with an employer’s human resource practices. Our documents typically include language that FMLA will run concurrently with other leaves in compliance with the DOL’s intent. To ensure that your medical plan document and your HR practices are coordinated, we offer a gap analysis which looks at gaps between your plan document and your employee handbook with an eye to ensuring compliance with your plan document and your stop loss carrier’s requirements. Gap analysis is done at no cost to you. If you are interested in having a gap analysis completed, please contact either Dave Follansbee or Laura Williams at the contact information below.