According to an opinion letter issued March 14 by the Wage and Hour Division (WHD) of the Department of Labor (DOL), the clock starts ticking on Family and Medical Leave Act (FMLA) leave the moment the employee qualifies for the leave.
This opinion, signed by acting WHD Administrator Keith Sonderling, runs counter to a ruling by the 9th U.S. Circuit Court of Appeals, which held that employees could withhold the start of FMLA leave to take paid time off first.
The letter states: “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.”
Furthermore: “The employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation . . . .[If] 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.”
The opinion further clarifies that employers are free to offer more generous leave terms, but in no case can more than 12 (or 26) weeks of leave be designated as FMLA-protected leave.