HR: Do Not Delay When Designating Leave Under the FMLA

By Amy Epstein Gluck

As readers of this blog know, I don’t wade into FMLA territory. I leave that for my employment law partner Eric Meyer or to FMLA guru, Jeff Nowak at FMLA Insights. However, a wonderful bout of insomnia early this morning has me on the computer and my third cup of coffee by 7 a.m.! Lo and behold, an FMLA issue piqued my interest (at about 5 a.m. and yes, I know, I need to get a life.).

You see I was intrigued because FMLA issues abound for HR and within larger companies in general. They certainly  seem to be multiplying for clients this week as I’ve found myself advising on three separate FMLA issues, and they are usually a source of confusion for employers and employees alike.

So I was psyched to see that the U.S. Department of Labor (DOL) had issued a new opinion letter concerning whether an employer may delay designating paid leave as FMLA leave or allow employees to expand their FMLA leave beyond the 12 weeks to which they are entitled.

While other bloggers will certainly cover this issue today, I wanted to take you back to some basics too.

Wait, what? What’s the FMLA? What’s an Opinion Letter?

Ok, ok, let’s back the truck up. What is the FMLA, you ask (or if you’re an employment nerd like me, you know, but if you’re my mom or maybe just into other things, you don’t and you want to know)?

The “FMLA” is the Family Medical Leave Act, a federal law entitling eligible employees to up to 12 weeks of job-protected unpaid leave in a year for certain family and/or medical reasons. The FMLA also provides for the continuation of group health insurance coverage under the same terms and conditions had the employee not taken leave.

An employee is “eligible” for this leave if (s)he has worked for the employer for 1,250 hours and for at least twelve months. Employees are not eligible if they work for just any employer; rather, the employer has to have 50 or more employees working within 75 miles of each other.

FMLA leave bases include, generally, having a baby, adopting or fostering a child or caring for a spouse, child, or parent who has a serious health condition or dealing with one’s own serious health condition. Like cancer and chemo treatments, surgery that requires recovery time (but no, not liposuction), or caring for a parent or son or daughter with a serious health condition.

Baby, Child, Cute, Dad, Daddy, Family

All of the above is in general and I’m speaking broadly. There are nuances, details, and other things to know here like designation notices, exceptions, and intermittent leave about which employers must be cognizant. There are certifications required, notice provisions, and timing aspects to be aware of, but that is not this blog post. In fact, each of these aspects of the FMLA could—and do—garner their own separate blog posts, which Eric has kindly provided.

This is why the FMLA section in your Employee Handbook (you have one, right?) is so long. There’s a lot to this law.

So, anyway, back to this new opinion letter from the federal agency that enforces the FMLA, the DOL. An opinion letter is more than guidance. Rather, in the FMLA context, it is an official written opinion by the DOL’s Wage and Hour Division as to how the FMLA applies in a certain circumstance.

Amy, can we get to it, please? What IS this very exciting new DOL opinion letter?

In a well-written and concise opinion, Opinion Letter FMLA2019-1-A responds to a request for an opinion about delaying designation of FMLA leave or permitting its expansion.

The verdict: employers cannot delay designating leave as FMLA leave once an employee communicates that (s)he needs the leave even if the employee requests it and employers cannot designate more than 12 weeks as FMLA leave (unless the employee requests military caregiver leave, but that is also not this post).

So, the opinion says two things—

  1. Once you, HR, employer, identify that an employee needs and is eligible for FMLA leave, the leave is protected under the FMLA and counts toward the employee’s 12-week entitlement. An employer cannot allow an employee to take paid sick time before tapping into their 12-week bucket of FMLA leave.
  2. What employers CAN do is require – or leave it up to an employee to elect – to substitute any unused paid leave the eligible employee may have (think: vacation time) to cover part of the FMLA leave. However, this paid leave would be included in the overall 12 weeks of FMLA leave—they may run concurrently, which is not new. An employer cannot expand the designation of the 12 weeks of FMLA-designated leave. Period.

The DOL also took the time to express its disagreement with the U.S. Court of Appeals for the Ninth Circuit on this issue. The 9th Circuit has held that an employee may use non-FMLA leave for an FMLA leave basis so as to preserve said employee’s 12 weeks of FMLA leave for future use.


Today’s takeaway is simple: understand how the FMLA works whether you are an employee requesting FMLA leave or HR determining how, when, and in what way to provide it. Consulting DOL’s opinions don’t hurt either.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.