On March 14, 2019, the U.S. Department of Labor (“DOL”), Wage and Hour Division, released an opinion letter, FMLA2019-1-A, stating that employers cannot delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.

In the opinion letter, the DOL opines that employers are prohibited from designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. The DOL acknowledges that employers can provide additional leave to employees who have exhausted their 12-week FMLA leave allotment, or who have not yet qualified for FMLA leave, but the DOL’s position is that employers cannot characterize this time as protected FMLA leave. Further, if an employee uses paid leave for a portion of his or her absence for reasons that would qualify them to take unpaid FMLA leave, the employee’s paid leave must run concurrently with the FMLA leave and not be used to extend it.

The DOL also takes the position in the opinion letter that once an eligible employee communicates a need to take leave under the FMLA, neither the employer nor the employee can decline FMLA protection for that leave and instead preserve protected FMLA leave for future use. As soon as the employer has sufficient information to determine that the employee is eligible for and entitled to take FMLA leave based on present circumstances, the employer must notify the employee that it is designating the time off as FMLA leave within five business days, unless there are extenuating circumstances. Therefore, even if the employee would prefer to delay the designation of their leave as FMLA-qualifying so they can first exhaust available paid leave before taking unpaid FMLA leave, the employer cannot do so and must designate the leave as FMLA leave as soon as the determination is feasible. This opinion letter marks a sharp departure from the Ninth Circuit Court of Appeals’ holding in Escriba v. Foster Poultry Farms, Inc. – namely, that an employee may use non-FMLA leave for an FMLA-qualifying reason and preserve available FMLA leave for future use.

To comply with this recent DOL guidance, employers are advised to assess eligibility and entitlement to take FMLA leave as soon as they are put on notice of a potentially qualifying condition; to designate leave as FMLA leave as soon as possible, providing written notice of designation within five business days; to ensure that employees’ paid time off runs concurrently with FMLA leave; and to provide no more than 12 (or 26, if applicable) weeks of FMLA leave. This is true even if employees would prefer that their employer delay the FMLA designation, or if the employer is willing to treat more time off as subject to FMLA protections.