On March 14, 2019, the U.S. Department of Labor (DOL) issued Opinion Letter FMLA2019-1-A. While most opinion letters do not come a surprise to me, this one I cannot say the same…more like a deer-in-the-headlights type of moment (I knew some of you were wondering what in the heck a deer had to do with the DOL). Indeed, the DOL clarified its position that while an employer may require an employee to use PTO while on FMLA leave (this is not a surprise), neither the employer nor the employee may extend FMLA by using PTO (surprise). Come again?! Let’s break this down.
An employer has 5 days to provide an employee a written designation notice (Form WH-382) after the employer has enough information to determine whether leave (including PTO) is being taken for a FMLA-qualifying reason. We know this. Employee says, I am going to have a baby, employer provides the WH-382 form. But what about the employee that wants to use PTO for say, a medical procedure, but not FMLA – and frankly, HR is happy to not have to go through the FMLA process. Not okay, says the DOL.
Once an eligible employee communicates a need to take leave for a FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. See 29 C.F.R. 825.701(a).
Thus, the DOL opines that as soon as an employer determines that a leave (even “just PTO”) is FMLA-protected, it must be counted towards the employee’s FMLA leave entitlement, and the employee must be notified within 5 days. No matter how badly the employee wants to “just use PTO” the employee cannot make that determination. I suppose it is based on the same premise as the FMLA – that an employee cannot contract around his or her rights (i.e. agree to less than minimum wage or agree to no overtime).
An employer is also prohibited from designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.
That right – an employer cannot actually allow an employee more than 12 (or 26) weeks of FMLA leave – “providing such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA.” I guess the concept here is the law is, what the law is. FMLA provides for 12 (or 26) weeks of FMLA, and neither the employer nor the employee can change that law.
What should employers do? Keep your ears open for the reasons behind PTO requests (make sure that supervisors are communicating to HR actual reasons if they don’t go through HR directly). Finally, don’t forget that one FMLA qualifying leave may not be the same as another. So, you may have intermittent leave for one medical issue, but a set time for a second medical issue – those would be different leave entitlements (and designation notices), but accrue for the same 12/26 week period.