Department of Labor Affirms that FMLA Runs Concurrently with Paid Leave

Date   Sep 23, 2019


On September 10, 2019, the Department of Labor (DOL) released a Family and Medical Leave Act (FMLA) Opinion Letter, FMLA2019-3-A, reinforcing the DOL’s position set out in an earlier opinion letter that “an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave.” WHD Opinion Letter FMLA2019-1-A, 2019 WL 1514982 (Mar. 14, 2019). The September letter reiterates that an employer may not delay designating paid leave as FMLA leave, even if the delay complies with a collective bargaining agreement (CBA) and the employee prefers that the FMLA designation be delayed.


The FMLA provides eligible employees the right to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. Such reasons include the birth of a child; care of a spouse, son, or daughter; or a personal serious health condition that renders the employee unable to perform the functions of his or her job. FMLA leave can be extended up to 26 weeks for care of a military family member or reasons related to certain military deployments of an employee’s family member (referred to as “military caregiver leave”).

Department of Labor’s September Opinion Letter

In the March 2019 opinion letter, the DOL addressed an employer’s obligation to designate leave as FMLA when it is for an FMLA-qualifying purpose but the employee prefers to elect other forms of paid leave first. As stated in the March 2019 letter, once an employer determines leave is for an FMLA-qualifying reason, the leave is FMLA-protected and counts towards the employee’s 12-week or 26-week FMLA leave entitlement. In other words, the employer must designate the leave as FMLA. Employers may still require or incentivize employees to “substitute” accrued paid leave to cover any part of an unpaid FMLA leave period, but the paid leave provided by the employer must run concurrently with the unpaid FMLA leave.

The DOL’s September 2019 opinion letter reinforces that when an eligible employee communicates a need to take leave for a FMLA-qualifying reason, neither the employee nor employer may decline FMLA protection for that leave, even if a CBA provides otherwise. Moreover, an employer policy or a CBA provision that incentivizes employees to take paid leave rather than FMLA does not authorize the employer to not apply FMLA protection for FMLA-qualifying leave. If an employee elects CBA-protected paid leave to cover any part of his or her unpaid FMLA entitlement period, the leave still must be designated as FMLA leave.

The DOL noted in both opinion letters that its position is in disagreement with the Ninth Circuit’s decision in Escriba v. Foster Poultry Farms, Inc., in which the court held an employee may decline to use FMLA leave for an FMLA-qualifying reason in order to preserve FMLA leave for future use. Because Escriba is binding precedent in the Ninth Circuit (the federal appeals court with jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington state), employers there should be aware of this conflict and mindful of the lesser weight afforded to regulations.

Equal Treatment of Employment Benefits Required for Paid Leave and FMLA Leave

The DOL’s September letter also confirms that where the employees’ CBA-protected paid leave does not affect their seniority status, unpaid FMLA leave must not negatively affect their seniority status. Otherwise, such a policy incentivizes employees to postpone using their unpaid FMLA leave until their CBA-protected leave is exhausted. Accordingly, an employer’s established policy providing accrued seniority during paid leave must also be applied to FMLA leave.

Bottom Line

The DOL’s September letter makes clear that, regardless of provisions in a CBA, once an employer has sufficient information to determine an employee has an FMLA-qualifying leave request the leave must be designated as FMLA leave—even if the employee would prefer not to use FMLA leave. Employers should contact their employment counsel to ensure that their FMLA policies and procedures are compliant with the DOL’s latest interpretations of the FMLA. If you have any questions regarding the DOL’s recent FMLA opinion letter please feel free to contact the author of this Alert, Jacquelyn Thompson,, partner in our Washington D.C. office1.   You may also contact the FordHarrison attorney with whom you usually work.

1. The author would like to thank Timia Skelton for her assistance with this Alert.