That’s the advice I’ve given; but until now, I’ve not had much legal authority to point to beyond the
regulations to support my position. For years, employers have considered this issue to be a gray area in
FMLA administration. That changed recently. An employee doesn’t get to choose whether an absence
is covered by the FMLA. The DOL has now made it clear when any absence qualifies as FMLA leave, it
must be designated as FMLA leave.
In a straightforward, practical opinion letter dated March 17, 2019, the U.S. Department of Labor
addressed whether an employee could delay FMLA leave and instead utilize accrued paid leave when the
absence clearly would qualify as FMLA leave. The DOL’s answer was swift and unequivocal:
An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave.
Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason,
nether the employee nor the employer may decline FMLA protection for that leave.
If that wasn’t clear enough, the DOL doubled down just a few sentences later:
The employer may not delay designating leave as FMLA-qualifying, even if the employee would
prefer that the employer delay the designation . . . [If] an employee substitutes paid leave for unpaid
FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA enti-
tlement and does not expand that entitlement.
Employers Can Still Be Generous with Their Paid and Unpaid Leave Programs.
This opinion letter doesn’t mean employers need to be stingy with paid and unpaid leave programs. In
fact, the regulations explicitly tell us, “Nothing in FMLA supersedes any provision of State or local law
that provides greater family or medical leave rights than those provided by FMLA.” 29 CFR 825.701(a)
So, there is nothing stopping an employer from providing additional leave when FMLA leave ends. As
this opinion letter points out, however, an agency simply can’t designate the additional leave as FMLA
leave once an employee has exhausted 12 weeks of FMLA leave.
Supreme Court Expands Coverage of the Age Discrimination in Employment Act
Most federal anti-discrimination laws governing employment decisions carve out exemptions for small
employers. Congress usually exempts employers who employ less than a certain number of employees
from the new law’s coverage in order to avoid placing a cost burden on smaller employers who can
ill-afford the compliance and litigation costs. Title VII, for example, the statute that outlaws discrimina-
tion in employment based on race, color, religion, creed, gender, and national origin only covers
employers who employ at least 15 employees. In my discrimination law classes I have always taught that
the Age Discrimination in Employee Act (ADEA) only covers employers when they employ at least 20
employees. It turns out that I was wrong about that.
In the United States Supreme Court’s first decision in the current term, Mount Lemmon Fire District v.
Guido, the Court broadened liability for small public employers nationwide by holding unanimously that
the Age Discrimination in Employment Act (ADEA) applies to all state and local public sector employers
irrespective of size.
www.gachiefs.com • Page 29 • 2nd Quarter Newsletter