This month, the Department of Labor answered a question that has puzzled many employers and employees: can an employer allow an employee who is eligible for FMLA leave to take paid leave instead? In short, the answer is no.

What is FMLA?

FMLA stands for the Family and Medical Leave Act, which requires covered employers to allow eligible employees up to 12 weeks of unpaid, job-protected leave per year for qualified family and medical reasons. These reasons can include the birth of a newborn child or the need to care for a spouse, child, or parent with a serious medical condition. According to the Act, the employer may require, or the employee may elect, to substitute accrued paid leave to cover any part of the unpaid FMLA entitlement period. In other words, FMLA leave and other paid leave must be used concurrently if the employee is FMLA-eligible and FMLA leave cannot be extended if other paid leave is used in its place.

What Does this Mean?
Essentially, if an employee chooses to substitute paid leave to cover part of the FMLA entitlement period, this still counts as FMLA leave. An employer may not delay the designation of FMLA-qualifying leave (by using paid time off first, for example) or designate more than 12 weeks of leave as FMLA leave. When an eligible employee reports to an employer that they need to take FMLA leave, the employer is then on notice, and at that point neither the employer nor the employee can decline FMLA protection if the leave qualifies under the FMLA. Therefore, even if the employee takes other paid leave, such as sick leave or vacation days, they are still also using their FMLA leave if the leave is for an FMLA-qualifying reason.

This means that employers must be cautious in allowing employees to take paid leave when they are otherwise eligible for unpaid FMLA leave. A covered employer must make sure that its employees understand that if they are taking paid leave for an FMLA-qualifying reason, this will not entitle them to an additional 12 weeks of unpaid FMLA leave and they are essentially using both their paid leave and their FMLA leave at the same time. Under the Act, an employer also must specifically designate FMLA-qualifying leave as such and provide a written designation notice to an employee within five business days after the employer has determined that FMLA-qualifying leave is being taken. Otherwise, absent the issuance of a designation notice, an employer risks being considered as having interfered with an employee’s right to FMLA leave, in violation of the law. Accordingly, it is absolutely essential for employers to make sure employees are given clear written notice of their rights when they alert an employer of circumstances entitling the employee to FMLA leave. The fact that FMLA leave cannot be delayed or extended should also be made clear. Employer representatives who have questions or need assistance in interpreting the FMLA, or in drafting appropriate workplace policies and administering training programs should consult legal counsel directly.

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