On March 14, 2019, the U.S. Department of Labor (DOL) issued an opinion letter, FMLA 2019-1-A, addressing compliance issues under the Family and Medical leave Act (FMLA). The FMLA provides eligible employees with up to 12 workweeks of unpaid leave during a 12-month period for certain family and medical reasons or to address certain qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty). The FMLA also permits eligible employees to take up to 26 weeks of leave to care for a covered servicemember with a serious injury or illness. At the conclusion of the leave, subject to some exceptions, an employee generally has the right to return to the same or to an equivalent position.

In its opinion letter, the DOL makes clear that employers cannot “delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.”  In this regard, employers must start the clock on employees’ FMLA leave once they learn that an absence qualifies for federal protection.

The DOL’s opinion letter conflicts with a 2014 Ninth Circuit decision holding that employees may defer FMLA leave and take paid time off instead. In Escriba v. Foster Poultry Farms, Inc., (9th Cir. Feb. 25, 2014), the employee indicated that she preferred to take vacation and not FMLA leave to care for her ill father. The employee was fired after she failed to return to work. In support of its decision to terminate the employee, the employer argued that it was within its right to fire her because the leave was not protected. In response, the employee argued that the employer was required to designate her leave as FMLA-protected regardless of whether she declined this designation. The Court of Appeals agreed with the employer, concluding that an employee can affirmatively decline to use FMLA leave even if the underlying reason for seeking time off qualifies under the law. Crucial to its decision was language in the FMLA regulations requiring employers to “inquire further of the employee if it is necessary to have more information about whether FMLA is being sought by the employee.” The Court of Appeals also explained that if it were to adopt the employee’s argument, employers would be placed in an “untenable situation if the employee’s desire is not to take FMLA leave[,]” as this could result in employees bringing an interference claim for forcing them to take FMLA leave.

Addressing Escriba, the opinion letter points to an FMLA regulation (29 C.F.R. § 825.220(d)) that requires employers to provide notice of an FMLA within five days of learning the reason for leave qualifies under the law. Based on this, the DOL opined that “[o]nce an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.”  Therefore, if an employer allows an employee to substitute paid leave for unpaid leave, the employee’s paid leave must be counted toward his or her total FMLA entitlement, and must not expand that entitlement.

As a general matter, courts are not required to defer to DOL opinion letters. This said, an employer’s reliance on a DOL opinion letter to justify its actions or decisions may allow it to prove, in the context of a lawsuit, that its violation of the FMLA was in good faith and that it had reasonable grounds to believe its action was not a violation—under which circumstances a court may deny a plaintiff’s request for liquidated damages (see 29 U.S.C. § 2617(a)(1)(A)(iii)). Especially when an opinion letter appears to conflict with a federal appellate decision, as here, employers should proceed with caution and evaluate the risks of a course of action inconsistent with the agency’s guidance.

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Photo of Allan Bloom Allan Bloom

Allan S. Bloom is a nationally recognized trial lawyer and advisor who represents management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended a number of the world’s leading companies against claims for unpaid wages…

Allan S. Bloom is a nationally recognized trial lawyer and advisor who represents management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended a number of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York TimesReutersBloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved hundreds of millions of dollars in potential damages.

Allan is regularly called on to advise boards of directors and senior leadership on highly sensitive matters such as executive transitions, internal investigations and strategic workforce planning. He also has particular expertise in the financial services industry, where he has litigated and arbitrated cases, including at FINRA and its predecessors, for more than 20 years.
A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA, Senior Editor), Employment Discrimination Law (ABA/Bloomberg BNA, Final Proof Editor), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR, Editor), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE, Chapter Author).

Allan is a member of the NYSBA’s House of Delegates, sits on the Executive Committee of the NYSBA’s Labor and Employment Law Section, and is a Fellow of the College of Labor and Employment Lawyers. He has been recognized as a leading practitioner by Chambers since 2011.

Photo of Arielle E. Kobetz Arielle E. Kobetz

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations…

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations and discipline, leave and accommodation requests, and general employee relations matters. She also counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising employee handbooks under federal, state and local law.

Prior to joining Proskauer, Arielle served as a law clerk at the New York City Human Resources Administration, Employment Law Unit, where she worked on a variety of employment discrimination and internal employee disciplinary issues.