By: Carol G. Schley, Clark Hill PLC





            It is a familiar situation:  an employee needs to take time off for a reason that qualifies under the Family and Medical Leave Act (“FMLA”), but he asks if he can just use his accrued vacation time and “save” his FMLA leave for later use.  In the past, employers faced with this situation might have granted the employee’s request.  However, a recent Opinion Letter from the U.S. Department of Labor (“DOL”) clarifies that under these circumstances, the employer must deem the leave as FMLA-qualifying and start the FMLA clock, regardless of the employee’s desires.

            Opinion Letters are issued by the DOL in response to queries it receives about various federal laws.  While Opinion Letters are not binding like court decisions, they can be used as persuasive authority on statutory interpretation and reasonably relied upon by employers in complying with the law.  The March 14, 2019 Opinion Letter addressed “whether an employer may delay designating paid leave as Family and Medical Leave Act (FMLA) leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement.”  In response, the DOL opined that when information is presented to an employer that indicates an employee is requesting leave that is FMLA-qualifying, the FMLA is triggered.  According to the DOL, there is no flexibility in the FMLA to allow an employee to choose whether to take FMLA leave:

            Once an eligible employee communications a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave… [T]he employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.

            The DOL also clarified in the Opinion Letter that an employer may not provide employees with more than 12 weeks of FMLA-qualifying leave (or 26 weeks of military caregiver leave) per year.  While the DOL recognized that employers can provide employees with more generous leave benefits, “such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA.”  As a result, “[i]f 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.”

            In summary, the Opinion Letter clarifies an employer’s response to a request by an employee to “save” their FMLA leave.  The response, simply, is “no.”  Further, per the Opinion Letter, if an employee wants to take any accrued paid leave for a reason that is also FMLA-qualifying, the paid leave and the FMLA must run concurrently.

            It is interesting to note that the Opinion Letter directly conflicts with a 2014 decision from the federal Ninth Circuit Court of Appeal, Escriba v. Foster Poultry Farms, Inc., in which the court held that an employee “can affirmatively decline to use FLMA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”  The DOL referenced the Escriba case in its Opinion Letter and said that it disagrees with its holding.  Since Michigan is part of the federal Sixth Circuit, the Escriba decision is not controlling over Michigan employers and, therefore, they should follow the DOL’s recent Opinion Letter on FMLA leave designation, pending any further developments in the courts.

            The Opinion Letter is a reminder that FMLA leave issues can be tricky, as evidenced by the situation here where the DOL and a Circuit Court of Appeals came to completely opposite conclusions on the same issue.  When you are in doubt on how to deal with time off requests from an employee, which may not only implicate the FMLA, but also other laws such as the ADA and Michigan’s new Paid Medical Leave Act, it is always best to consult with legal counsel.

Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC.  She can be reached at cschley@clarkhill.com or (248)530-6338.                                  

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article.  April 2019