Opinion letter ripple effect continues

Millions of employees work under a collective bargaining agreement (CBA). Such agreements can provide for any number of benefits, but what they may not do, according to a 9/10/19 U.S. Department of Labor (DOL) opinion letter, is agree to or allow the delay of FMLA leave when the leave would otherwise qualify for FMLA protections.

On March 24, 2019, the DOL issued an opinion letter that had a ripple effect through the FMLA administration community. It generally indicated that when leave qualifies for FMLA protections, neither the employer nor the employee may delay it while the employee is using other accrued paid time off. If the leave qualifies, then the paid time off would run concurrently with the otherwise unpaid FMLA leave.

In light of this, some employers changed their policies to stop allowing the delay of FMLA leave. But what if, wondered at least some of these employers, a CBA provides for paid leave and employees would prefer to start the delay of FMLA leave? This can be particularly true if taking FMLA leave before taking accrued paid leave might negatively impact an employee’s seniority status under the applicable CBA and state civil service rules, as determined by a state’s civil service commission.

Tough noogies, says the DOL. Once an employee puts you on notice of the need for leave, the FMLA clock starts ticking, and you need to provide an eligibility/rights and responsibilities notice. The employer is also responsible in all circumstances for designating leave as FMLA-qualifying and giving notice of the designation. Failure to follow the FMLA’s notice requirements may constitute interference with, restraint on, or denial of the exercise of an employee’s FMLA rights.

“Once 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.”

This is true even if the employer is obligated to provide job protections and other benefits equal to or greater than those required by the FMLA pursuant to a CBA or state civil service rules.

The DOL didn’t stop there. It indicated that, if pursuant to a CBA and other policies, an employer provides for the accrual of seniority when employees are utilizing accrued paid leave, it must permit employees to accrue seniority when they are substituting FMLA leave for paid leave.

The March opinion letter resulted in confusion for many employers, and this latest entry will likely give rise to more questions. With this second letter, it should be clear that, if the leave would otherwise qualify for FMLA protections, employers are to provide those protections and not delay them during accrued paid leave.

FMLA2019-3-A