This Opinion Letter responded to employer questions regarding whether they may delay designating paid leave as FMLA, or, alternatively, whether employees can choose to delay the use of FMLA leave by electing other forms of leave instead. In other words, the employer has both the authority and obligation to designate leave that qualifies under the FMLA. Indeed, according to this Opinion Letter, employers have a legal obligation to designate the leave as protected or it risks violating the statute's prohibitions on interference, restraint, or denial of FMLA rights. The W&H Division's new Opinion Letter clarifies that employers are permitted to designate FMLA-qualifying leave-running it concurrently with non-FMLA leaves-even if the employee prefers not to use FMLA leave concurrently. In some instances, the employee might refuse to provide the required FMLA medical certification, choosing to hold FMLA leave for later usage while exhausting employer-provided paid or unpaid leave time. This includes workers' compensation, non-work-related disability leave, or simply sick leave.
#Fmla paid leave how to
Many employers have struggled with how to treat leave time under its paid leave policies when it was clear that the time away also qualifies as FMLA. Under the FMLA, employers can and should designate any qualifying leave time as FMLA. Department of Labor's Wage and Hour Division (W&H Division) recently issued a new Opinion Letter on an issue that has long-plagued employers under the Family and Medical Leave Act (FMLA)-namely, whether an employer can "force" an FMLA designation on leave when the employee resists the designation.
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