Chiefs’ Counsel’s Corner
Two Notable Changes in
Employment Law
Michael A. Caldwell, JD
General Counsel, GACP
Delong • Caldwell • Bridgers • Fitzpatrick • Benjamin, LLC
101 Marietta Street, Suite 3100 NW
Atlanta GA. 30303
(404) 979-3150
The U. S. Department of Labor and the U.S. Supreme Court have recently issued opinions that:
(1) confirm advice I have given in the past about designating leave as FMLA-covered, and (2)
changed what I have been teaching for many years about the coverage of public employers by the
Age Discrimination in Employment Act (ADEA).
DOL Clarifies Who Gets to Designate Leave as FMLA Leave
Everyone employs at least one employee who:
requests medical leave because of a medical issue that is clearly an FMLA-qualifying condition;
but wants to use their accrued paid leave instead of tapping into FMLA?
The employee might even become indignant, insisting the law allows them to choose either
FMLA leave or ordinary sick leave to cover an absence clearly covered by the FMLA.
How should supervisors respond to this employee?
I have long thought the answer to be rather simple: when an absence qualifies as FMLA leave, the
employer should designate the leave as FMLA leave. After all, the regulations tell us that, “once
the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying rea-
son, the employer must [designate the absence as FMLA leave].” 29 C.F.R. 825.301(a).
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