Since 2012, the number of lawsuits claiming employer violations of the Family and Medical Leave Act (FMLA) has more than tripled. Given the unique challenges the FMLA presents for employers, this rise is not surprising.

In particular, designating leave under the FMLA when an employee seeks to decline FMLA protections and dealing with suspected FMLA abuse are two issues employers often need to address with employees. We briefly address both issues here.

FMLA Designation Is NOT Optional

On March 14, 2019, the United States Department of Labor (DOL) issued an opinion letter asserting that employers and employees cannot agree to waive FMLA protections for leave covered by the FMLA. This situation typically arises when an employee wants to use some other (paid or unpaid) leave benefit instead of FMLA. According to the DOL, “[o]nce an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.” The DOL warned that employers who fail to promptly designate covered time off as FMLA leave could face liability for FMLA interference claims.

The DOL went on to say that, although employers can offer more generous leave policies to their employees than what is required by the FMLA (such as paid time off and longer leaves of absence), employers cannot designate more than 12 weeks for medical and bonding leaves, or 26 weeks for military caregiver leave, as FMLA protected leave.

Although DOL opinion letters are not binding law, they provide employers with the DOL’s interpretation of a specific legal question. Employers would do well to heed DOL’s guidance.

Investigate Suspected FMLA Abuse

Employers often learn that employees on FMLA leave engage in activities that are inconsistent with the employees’ alleged need for leave. While some courts have denied employees’ FMLA claims when an employer honestly believed the employee was using FMLA leave for non-FMLA reasons, other courts have found certain leisure activities to be consistent with FMLA leave (such as an employee who travels with the relative they are caring for) or have found violations of the FMLA where the employer’s belief of abuse was not well-founded. See, e.g., Ballard v. Chicago Park District, 741 F.3d 838 (7th Cir. 2014).

Whether an employee’s activities qualify as FMLA abuse will depend on the facts of each situation. However, employers who successfully assert an “honest belief” defense generally conduct investigations into the employee’s suspicious conduct before taking action against the employee. Employers who suspect FMLA abuse should thus consult with legal counsel to plan for and conduct a good faith investigation before disciplining any employee suspected of FMLA abuse.