The Department of Labor (DOL) issued an opinion letter that provides employers with further guidance on Family and Medical Leave Act (FMLA) leaves.

Employers Cannot Delay the Designation of FMLA–Qualified Leave

• If an employee requests a leave for reasons that qualify under FMLA, neither the employer nor employee can decline FMLA protection for that leave.
• Employers and employees cannot delay nor deny FMLA protections once the reasons for leave are deemed qualified for FMLA leave.

FMLA Leave Cannot be Extended Beyond 12 Weeks

• Employers are prohibited from designating more than 12 weeks of leave as FMLA leave.
• Employers still must observe any benefit program or plan that provides greater family or medical leave rights to the employees, but any additional leave cannot expand the employee’s FMLA-protected leave.

With this opinion, the DOL limits the number of weeks an employee can be on leave with FMLA qualified reasons. The employer is still free to grant leave to the employee in its discretion, but employers cannot extend the actual FMLA leave beyond that. If an employee requests paid time off instead of FMLA, the leave will count toward, and will run concurrent with, his or her 12 weeks maximum FMLA leave. The DOL still respects granting 26 weeks of time for a military caregiver.

Taft’s Employment and Labor Relations group takes a pragmatic approach to attendance, FMLA and leave of absence situations. We present management with options, including a candid assessment of the legal and practical risks associated with each one. Our team is experienced in designing compensation and hiring policies that comply with local, state and federal law. If you have any questions as to how the changes in the law will affect you, please contact us.