FMLA Update: Employees Can’t Elect to Delay FMLA Leave for Covered Absences

3.26.2019 Blog

The Department of Labor recently issued an opinion letter considering the following two questions: 1) can an employee elect to take paid leave for an FMLA-covered absence before FMLA leave is used?; and 2) is an employer permitted to provide FMLA-designated leave in excess of the 12 weeks of unpaid, job protected leave provided by the FMLA?1  In answering “no” to both questions, the DOL noted the following:

  • FMLA regulations require (absent extenuating circumstances) the employer to provide the employee with a written FMLA “designation notice” within 5 business days after the employer has enough information to determine that the employee’s leave is taken for an FMLA-qualifying reason2.
  • Given this requirement, “once an eligible employee communicates a need to take leave for an FMLA qualified reason, neither the employee nor the employer may decline FMLA protection for that leave . . .even if the employee would prefer that the employer delay the designation.”
  • The FMLA provides only 12 weeks (or 26 weeks when applicable) leave. While there is nothing stopping an employer from providing a more generous leave policy, an employer is not permitted to expand the employee’s 12-week (or 26-week) FMLA leave entitlement3.


Employer Takeaways

It isn’t uncommon for an employee to “push back” on an employer’s attempt to designate FMLA leave to preserve the 12-weeks (or 26-weeks) of job-protected leave. Employers may also delay designating leave as FMLA-qualifying to extend the amount of leave available to an employee. Now that the DOL has clarified its position on this issue, employers should ensure that any FMLA-qualifying leave is promptly designated as such, regardless of whether the employee prefers otherwise. Note that this obligation applies to an employee with a “serious health condition” because of a workers’ compensation injury too.

While the DOL makes clear that an employer cannot expand FMLA-designated leave, an organization is free to provide more generous family and medical leave to its employees under its own benefit plan. The DOL reminds employers that they are required to observe the terms of those more generous plans. The DOL’s recent opinion letter presents a good opportunity for employers to review all family and medical leave plans to ensure they comply with the DOL’s guidance, as well as examine whether those plans are administered properly within the organization.

1 Employers should be aware that the FMLA provides up to 26 weeks leave for “military caregiver leave” to qualified employees.  See 29 U.S.C. § 2612(a)(3).
2 29 C.F.R. § 825.300(d)(1).
329 U.S.C. § 2653.


The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law.