DOL Opinion Letter: FMLA Designation Can’t Be Delayed by Leave Provided Under Collective Bargaining Agreement

On September 10, 2019, the DOL issued opinion letter FMLA2019-3-A, addressing the relationship between FMLA and the leave provisions of a collective bargaining agreement (CBA). As background, the person requesting the opinion is an employee of a local government agency and is subject to CBAs under which employees may delay taking unpaid leave, including unpaid FMLA leave, until after CBA-protected accrued paid leave is exhausted. The CBAs also provide that accrued paid leave taken by employees is treated as continuous employment that does not affect employees’ seniority status under the relevant state civil service rules.

The employee asked the DOL for an opinion after their employer updated its leave policy to designate leave as FMLA leave when the employer learns that an employee needs leave for an FMLA-qualifying reason. The policy was also updated to require that FMLA leave be taken concurrently with CBA-protected paid leave. The employee wanted to know if the employer must designate FMLA-qualifying leave as FMLA leave when the employee would prefer to delay taking FMLA leave until after taking CBA-protected paid leave. The employee was also concerned that taking FMLA leave first would negatively impact their seniority status under the CBAs and state civil service rules.

The DOL notes that employers cannot delay designating FMLA-qualifying leave as FMLA leave, once the employer learns of the FMLA-qualifying reason for the leave. Specifically, within five days of learning of an FMLA-qualifying leave, the employer must designate the leave as such and provide the employee with certain critical information.

FMLA also allows the employer to designate, or the employee to elect, to substitute accrued paid leave to cover any part of the unpaid FMLA entitlement period. In addition, FMLA provides that FMLA leave does not interfere with an employee’s entitlement to other benefits consistent with the employer’s policies regarding those benefits. If the employer’s policies allow for the accrual of seniority during a paid leave of absence, then the employee can accrue seniority during paid leave under FMLA.

Accordingly, the DOL opined that the employee’s right to take CBA-protected paid leave, and the right to count that paid leave time towards the employee’s seniority status, is not undercut by FMLA leave or the employer’s policies concerning such leave.

The letter provides the DOL’s opinion regarding the interaction between FMLA and other employer-provided leave. As with any opinion letter, the response is an application of the law to the specific circumstances presented by the requester. However, employers should take note that there is no discretion to delay designating leave as FMLA leave once the employer determines that the leave qualifies as such. Employers should also take note that FMLA applies in addition to or along with the employer’s policies (or CBAs, as is the case here), so that employer policies concerning such leave should be crafted so that neither the employee’s FMLA rights nor other rights are denied.

FMLA2019-3-A »