We have received several inquiries recently concerning whether an employer covered by the Family and Medical Leave Act is required to designate leave as FMLA leave if the leave is for an FMLA-qualified reason. A recent opinion letter from the U.S. Department of Labor (DOL) answers that question in the affirmative.
The FMLA requires employers to notify employees that their leave is FMLA-protected within five days of obtaining enough information to make this determination. An employee might request an employer not to designate leave as covered by FMLA, and to use PTO or other forms of paid leave instead. The advantage to the employee is to preserve his/her 12 weeks of protected FMLA leave. The DOL’s opinion letter clarifies the employer’s obligation to make the designation within the required 5 days even if the employee prefers otherwise. The opinion letter can be found at:
https://www.dol.gov/whd/opinion/FMLA/2019/2019_03_14_1A_FMLA.pdf
The advantage for employers in designating leave as covered by FMLA is that it reduces the employee’s annual 12 week FMLA leave allowance. The advantage for employees in having the designation made is that the designation triggers the FMLA’s various job protections. In order to avoid misunderstandings about how the leave is being designated, we recommend that employers always use the DOL’s designation form, which can be found at:
https://www.dol.gov/whd/forms/WH-382.pdf
