DOL WHD Issues Guidance on the Interaction of Paid Leave and FMLA
On March 14, 2019, the Wage and Hour Division (WHD) of the DOL issued Opinion Letter FMLA 2019-1-A. Opinion letters are not considered formal guidance. They are only intended for the party submitting the inquiry. However, they do provide insight into how the DOL would view a similar set of facts and circumstances.
The requester asked the DOL if an eligible employee’s use of paid leave extends or delays an employee’s entitlement to 12 weeks of unpaid leave under FMLA. The WHD responded that the use of paid leave would neither delay nor extend an eligible employee’s FMLA leave entitlement. This is based on the DOL regulations that require an employer to provide a notice designating leave as FMLA within five business days, absent extenuating circumstances, after the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason.
The regulations further provide that paid leave provided by the employer runs concurrently with FMLA. An employer may choose to be more generous than FMLA requires and provide additional paid or unpaid leave to an employee, but an employer may not designate more than 12 weeks of leave (or more than 26 weeks of military caregiver leave) as FMLA-protected.
The letter does not change an employer’s existing obligations under FMLA. However, it does serve as a good reminder that as soon as an employer has knowledge that an employee is absent for an FMLA qualifying reason, then they should send the designation notice within five business days regardless of whether the employee is using paid time off, receiving workers compensation benefits or other paid leave benefits.