On March 14 the Department of Labor issued several opinion letters. Of particular concern was FMLA 2019-1-A which addresses designating paid leave as FMLA. The DOL has taken the position that leave must be designated within 5 business days of notice regardless of whether the employer allows additional leave outside of the FMLA. In other words, you can’t allow an employee to exhaust their PTO and then designate leave which would otherwise be qualified as FMLA leave. It doesn’t matter that this may benefit the employee as the technical requirement of the rule is that the FMLA designation be issued within 5 days.
There are a number of areas where this may impact an employer’s actions including workers’ compensation. Some employers choose to wait for a period of time prior to designating workers’ compensation leave as FMLA. However, this would not be allowed under this opinion letter as the delay, whether it would benefit the employee or not, would be improper under the statute.
Another question which crops up is whether the employee can decline to have an FMLA designation made for any leave which is taken. In this letter, in note 3, the Department of Labor specifically states that it disagrees with Escriba vs. Foster Poultry Farms, Inc., 743 Fed. 3rd. 1236 9th Cir. 2014 which had held that an employee who declined FMLA and then subsequently took leave in violation of the agreed upon amount could be terminated from employment. The declination meant no FMLA applied. Pursuant to the statements in the letter it appears that the employee would not be able to decline an FMLA designation. The letter appears to state that FMLA is automatic with a qualifying event and that the employee may not decline FMLA. However, this creates a series of additional questions.
Under current interpretations of the law, if the employer becomes aware of or has a reasonable belief that the employee may need FMLA, that employee should be provided with FMLA paperwork. The employee then has 15 days to return the paperwork to obtain FMLA certification. What happens if the employee never returns the paperwork but has either verbally indicated a medical need or through general knowledge or gossip the employer knows that the need is FMLA based? The statute allows the employer to decline the FMLA designation if the certification is not returned within the appropriate time frame. The statute, rather than an opinion letter, will typically set the standard. Under strict statutory construction it would be the employer’s obligation to provide notice for FMLA but if the employee refused to provide the certification it will then be treated as an attendance or disciplinary problem which could result in termination of employment.
The take away here is pay attention to technical compliance, make sure you designate within the appropriate time frame, and assess the situation as a whole. Opinions, and opinion letters change, so review compliance fully, not just based on a single opinion letter.
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