The U.S. Department of Labor (DOL) has issued an Opinion Letter to clarify that under the Family and Medical Leave Act (FMLA), employers cannot (1) delay the designation of FMLA-qualifying leave, even if the employee prefers the delay, or (2) designate more than 12 weeks (or 26 weeks if military caregiver leave) as FMLA leave.

The Opinion Letter expressly disagrees with the Ninth Circuit’s holding in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014), in which the court held that an employee can affirmatively decline to use FMLA leave in favor of first exhausting leave under other employer policies, even where the reason for the leave is FMLA-qualifying. Citing to the FMLA regulations regarding waiver of rights, the DOL clarifies that once an eligible employee communicates a need for leave for an FMLA-qualifying reason, neither the employer nor the employee may decline or delay the FMLA designation and protection for the leave. Therefore, the DOL states that employers must “start the clock” on FMLA leave concurrently with other applicable leave for those employees who seek to use PTO, paid sick leave, or other employer-provided leave for an FMLA-qualifying absence. Furthermore, although an applicable employer policy or plan may offer more than 12 (or 26) weeks of leave in a one-year period for an FMLA-qualifying reason, such additional leave cannot expand the employee’s leave entitlement or rights (e.g., job and employee benefits protection) under the FMLA for that period. Although this Opinion Letter can serve as persuasive authority, employers within the jurisdiction of the Ninth Circuit should note that the Letter does not overturn the Escriba decision.

Employers should review their FMLA and other leave policies and practices to take into account the DOL’s position but also any potentially conflicting case law in their jurisdiction. Employers must also continue to be mindful that certain absences that qualify for leave under a state or local law may not constitute FMLA-qualifying leave, such as paid sick leave to obtain services related to domestic violence, stalking, or sexual assault.

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