US Department of Labor Issues New FMLA Guidance

An employee requests the use of sick leave, vacation, or PTO to care for his ill mother.  Your first instinct (and the 100% correct one) is to set that FMLA process in motion.  But what if your employee wants to “save up” FMLA for scheduled surgery later in the year, or the expected birth of a child in a couple of months?  What do you do if your employee says, “thanks, but no thanks” to FMLA?

According to new DOL guidance, your employee does not get to choose.  You are obligated to designate the leave as FMLA leave if the employee is eligible and the leave is for a FMLA-qualifying reason: no ifs, ands, or buts.  You may require employees to use all accrued paid leave concurrently with FMLA leave, or you may allow the employee to choose whether to use accrued paid leave during FMLA leave.  (Whichever route you choose, you absolutely need to have a written policy regarding this in your employee handbook.)  But there is no third option: an employee cannot elect to use that paid leave and put off the use of FMLA until some future date.

What should you do?  Continue to train your managers with respect to FMLA and the events, reasons, and conditions that trigger the FMLA process.  A manager whose employee asks for “a week of PTO after my wife’s surgery” should immediately refer that employee to HR (or the designated individual) to get the FMLA ball rolling.  Failure to designate FMLA-qualifying leave as FMLA leave opens you up to serious liability, regardless of whether your employee wants his or her leave covered by FMLA or not.

Questions regarding FMLA or other federal and state leave laws?  Contact our expert attorneys for assistance.

Written by attorney, Britt Waterman

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