On March 14, 2019, the Department of Labor released an opinion letter relating to the Family and Medical Leave Act (FMLA). The letter addressed two questions concerning the FMLA; one that was simple and one much more complicated. The common thread that connects both inquiries is that it is the government that decides when and how much FMLA leave an employee may take, not the employer and not the employee.

1. Can an employer designate more than 12 weeks per year as FMLA leave for an employee?
No. The law provides for 12 weeks of unpaid FMLA leave and an employer may not extend that past the federal allowance. If the employer wishes to extend more leave to the employee, it must be through an alternate form of time off.

2. May an employer delay the designation of FMLA-qualifying leave?
No. The law says that “employees cannot waive, nor may induce employers to waive, their prospective rights under the FMLA.” Furthermore, the law requires an employer to make a determination that leave is FMLA-qualifying as soon as enough information materializes to make such a decision. The employer is obligated by law to designate qualifying leave as FMLA as soon as possible. As such, an employer may not delay the use of FMLA until after an offered paid leave is taken: either FMLA is taken first, or the two must be taken concurrently.

a. This opinion places a burden on the employer to be attentive and to be inquisitive when an employee goes out on leave. This opinion also forces employers to make logical assumptions and connect dots, designating leave as FMLA even when an employee doesn’t want them to or doesn’t think it is necessary. When the evidence shows that the employee is entitled to the leave, the employee gets the leave and it cannot be obstructed or delayed in any fashion. 

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