Should an employer and employee be allowed to agree to delay or extend FMLA leave? In the past, those arrangements allowed employees to use paid time off (PTO) either before the start of FMLA leave or to extend the duration of FMLA leave. However, a recent change in position at the Department of Labor makes this type of employee-friendly arrangement a violation of the FMLA.
The Family & Medical Leave Act (FMLA) allows employees to take 12 weeks off of work for certain qualifying conditions, like serious medical issues, the birth of a child, and to take care of sick family members. The FMLA only mandates time off– it doesn’t require paid leave. In many situations, employees find themselves without pay for the 12-week leave period. The upside for employees is that they have certain job protections during the FMLA period and upon their return to work.
Previously, the Department of Labor was of the opinion that an employee could be allowed to use PTO up front and then dip into a “bank” of the full 12 weeks of FMLA unpaid leave once PTO was exhausted. Sometimes, employers designated the whole leave period as protected FMLA leave. The DOL approved, reasoning that the FMLA sets the minimum standard– employers could choose to provide a higher standard of benefits. In those instances, employees were able to take more time off while enjoying the protections of the FMLA.
However, in its March 14, 2019 opinion letter, the DOL completely changed course. Now, an employer is neither allowed to delay the start of FMLA leave nor to designate more than the statutorily allotted 12-week period as protected FMLA leave.
It’s important to note that this change does not prohibit an employer from allowing or requiring an employee to use PTO for qualified FMLA leave; the difference is that the PTO runs concurrent with the 12-week FMLA entitlement. In other words, employers are no longer free to delay or extend the statutorily mandated FMLA entitlement– even if the arrangement is in an employee’s best interest.