Employer Alert: DOL Clarifies Position on the Delay or Extension of FMLA Leave

In response to a specific inquiry, the U.S. Department of Labor (DOL) recently indicated that an employer is not permitted to delay the designation of an employee’s Family Medical Leave Act (FMLA)-qualifying leave, or allow more than the 12 weeks (or 26 weeks for military caregiver) of FMLA-protected leave.

The DOL carefully explained that FMLA-qualifying leave for an eligible employee cannot be refused by an employer or declined by an employee, “once an eligible employee communicates the need to take leave for an FMLA-qualifying reason.” Further, once an employee provides notice, an employer cannot delay designating leave as FMLA-qualifying, even if the employee later decides that they would like to delay the designation.

In terms of extending an employee’s FMLA leave, the DOL acknowledged that, “[a]n employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA.” See 29 C.F.R. § 825.700.  But, it noted, this additional leave cannot be added to an employee’s 12 weeks (or 26 weeks) as FMLA-protected leave. For example, an employee cannot apply 2 weeks of paid leave to 12 weeks of FMLA-qualifying leave in order to create a 14 week FMLA-protected leave.

For more information

For more information or if you have questions about complying with this FMLA clarification, please contact Stephen Adams, Lisa R. Wichter, Kristen M. Whittle, and Alexandra L. Rotondo at (401) 273-7171 or (617) 654-8200.

Barton Gilman’s employment law team provides comprehensive legal guidance to a wide variety of employers on all aspects of the employment cycle—from hiring through separation—including personnel policies and handbooks, non-compete agreements, and representation before state and federal courts and agencies. To learn more, please visit here.

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