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By May 6, 2019May 20th, 2019Blog,

A typical Family Medical Leave Act (FMLA) leave inquiry to HR Services often has to do with when do you start the clock on an employee’s leave. The Department of Labor (DOL) has clarified the answer to that question in a recent opinion letter.

On March 14, 2019, the DOL’s Wage & Hour Division (WHD) issued the letter clarifying the DOL’s position on when an employer is obligated to designate FMLA leave.

Once the employer knows that an absence or medical situation qualifies under the FMLA, the employer must start the leave clock ticking. It isn’t unusual for an employee to request a delay by first using accrued and unused benefit leave time. According to the DOL, that is not legally allowed. The regulations have made it clear that “once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must designate the absence as FMLA leave.”

The opinion letter has also made clear that, “An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.”

In fact, the DOL letter went on to say, “The employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation…[If] an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week [military]) FMLA entitlement and does not expand that entitlement.”

If more time is needed or desired, the employer has the option of allowing an extension, however, that extra time should not be designated as FMLA leave time. The DOL also made clear that FMLA leave is limited to 12 weeks. This doesn’t mean that you can’t be more generous with your leave policies. However, it does clarify that you should not describe it as FMLA leave nor designate it as such.

The letter also makes it clear that in no uncertain terms can an employee decline FMLA leave even when the absence or leave is covered under the FMLA. Many of you who are in the states covered by the Ninth Circuit Court of Appeals may remember a case Escriba v. Foster Poultry Farms that allowed the employee (Escriba) to turn down FMLA covered leave. This opinion letter makes it clear it does not agree with the outcome of that particular case.

FMLA continues to be a tricky area and the good news is, this opinion letter does provide clarity in several areas.

501(c) Agencies Trust members who have questions regarding FMLA or any of the other alphabet soup of state and/or federal leaves, should not hesitate to call HR Services. Your 501(c) Agencies Trust membership or subscriber status gives you unlimited access to the program. You can reach us at (800) 358-2163 or via email at

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