Asked differently, is it legal for an employer to delay the designation of FMLA-qualifying paid leave as FMLA leave or to provide additional FMLA leave beyond the 12-week FMLA entitlement?

Essentially, the employer would be voluntarily permitting employees to exhaust some or all available paid sick (or other) leave prior to designating leave as FMLA-qualifying, even when the leave is clearly FMLA-qualifying.  The reasoning for allowing this would be the federal code of regulations interpreting the FMLA. Specifically 29 C.F.R. § 825.700, provides in relevant part that “[a]n employer must observe any employment benefit or program that provides greater family and medical leave rights to employees than the rights provided by the FMLA.”

On March 14, 2019 the U.S Department of Labor (DOL) issued an opinion letter addressing this issue (FMLA2019-1-A).  In that DOL opinion letter the Acting Administrator stated that an employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.

In support of this position, the DOL explained that an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates a need to take leave for an FMLA­ qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.  The regulations state that employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA.  The DOL also cited a case from the Eleventh Circuit Court of Appeals (controlling in Florida) which noted that the employer may not choose whether an employee’s FMLA-qualifying absence is protected or unprotected by the FMLA.

Accordingly, when an employer determines that leave is for an FMLA-qualifying reason, the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement. Failure to designate a portion of FMLA-qualifying leave as FMLA would not preempt FMLA protections.  Once the employer has enough information to make this determination, the employer must, absent extenuating circumstances, provide notice of the designation within five business days.

The DOL opinion letter further explained that an employer is also prohibited from designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.  Of course, the opinion letter noted, an employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA. But the Opinion Letter cautioned, providing such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA.  Therefore, if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

Florida employers should use this Opinion Letter to guide their decisions in making FMLA designations, as this is the guidance that the DOL investigators will follow.

In addition to the above opinion letter, in March 2019 the U.S. Department of Labor also issued two other new opinion letters.  Those other opinion letters address compliance issues related to the Fair Labor Standards Act (FLSA).  Keep in mind that an opinion letter is an official, written opinion by the Department’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the individual person or entity that requested the letter.

The opinion letters issued in March 2019 are:

FMLA2019-1-A: Provides an opinion on the obligation to designate FMLA-qualifying leave and prohibition on expanding FMLA leave;
FLSA2019-1: Clarifies FLSA wage and recordkeeping requirements for residential janitors and the “good faith” defense; and
FLSA2019-2: Addresses FLSA compliance related to the compensability of time spent participating in an employer-sponsored community service program.


If you need any assistance in handling FMLA matters, or FLSA issues concerning your Florida business or if you need guidance in any employment policies, please promptly email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.

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Law Office of David Miklas, P.A.

management labor & Employment law

Can an employer delay designating paid leave as Family and Medical Leave Act (FMLA) leave to permit employees to expand their FMLA leave beyond the statutory 12-week entitlement?