In response to requests from interested parties, the U.S. Department of Labor’s Wage and Hour Division periodically issues guidance about how to comply with the Family and Medical Leave Act and the Fair Labor Standards Act in certain situations.

On March 14, the division issued an opinion letter clarifying the FMLA leave entitlement for employers and employees by addressing the issue of whether an employer may delay designating paid leave as FMLA leave, and whether employers may permit employees to expand their FMLA leave beyond the statutory 12-week entitlement. (The letter can be found at www.dol.gov/whd/opinion/search/index.htm?FMLA.)

The FMLA, enacted in 1993, requires covered employers to provide up to 12 weeks of job-protected unpaid leave per year to eligible employees for qualified family or medical reasons. To be eligible, the employee must have been employed for at least 12 months and must have worked at least 1,250 hours within the preceding 12 months. Employees may choose to substitute accrued paid leave to cover any part of their FMLA leave. Such leave runs concurrently with the unpaid FMLA leave and counts toward the 12-week entitlement.

An interested party requested an opinion from the Wage and Hour Division to clarify the FMLA entitlement because some employers permit employees to exhaust their accrued paid leave before designating leave as FMLA-qualifying. The federal regulation in question was 29 C.F.R. 825.700, which states that an employer “must observe any employment benefit or program that provides greater flexibility and medical leave rights to employees than the rights provided by the FMLA.”

Interpreting this provision, the division clarified that employers are responsible for designating leave as qualifying under the FMLA and providing written notice to employees within five business days once they have enough information to determine whether the leave qualifies. Designating leave as FMLA-qualifying may not be delayed, even if the employee would prefer to do so.

The Wage and Hour Division also clarified that employers with more generous leave policies than the FMLA may not designate more than 12 weeks of qualifying leave by adding FMLA leave on to leave that falls under the more generous plans. Providing additional leave under an employer policy, beyond the FMLA 12-week allowance, does not expand an employee’s entitlement under the FMLA.

Municipal managers are advised to take note of this clarification in order to avoid interpreting policies in ways that effectively extend FMLA-qualifying leave.

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