On March 14, 2019, the U.S. Department of Labor (DOL) issued an opinion letter concerning the Family Medical Leave Act (FMLA). The FMLA provides eligible employees a maximum of 12 weeks of unpaid, job-protected leave for specified family and personal medical reasons and up to 26 weeks to care for a covered service member per year. In its opinion letter, the DOL addressed whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory requirements.

The DOL took the position that employers cannot delay in designating leave as FMLA qualifying, even if one or both of the employee or employer want to do so. The DOL made clear that once an employee notifies his or her employer about a need to take FMLA leave, the employer must provide notice of the designation to the employee within five business days, absent an exigent circumstance. Moreover, employees may not extend their FMLA qualified leave by utilizing paid leave such as paid time off (PTO) or paid sick leave. FMLA leave must run concurrently with paid leave. Thus, “if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts towards his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.”

The DOL’s opinion letter is noteworthy in that many employers currently allow employees to combine FMLA and accrued paid leaves to effectively increase their leave entitlement. Further, the DOL’s letter conflicts with the Ninth Circuit’s decision in Escriba v. Foster Poultry Farms (9th Cir. Feb. 25, 2015), in which the court held that an employee can decline to use FMLA leave in order to first exhaust any other leave provided under the employer’s policies.

Given the Escriba decision, we recommend that employers within the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) continue to follow Escriba and allow employees to use accrued sick and other leave time before requiring the use of FMLA leave. Employers in other jurisdictions, unless there is case law to the contrary, you should incorporate the DOL’s recent guidance.