In Absence, Blogs, FMLA Updates

By Angie Brown, Absence Practice Leader

April 16th, 2019

If you haven’t yet heard, the DOL has issued an opinion letter relating to the designation of FMLA leave.

The opinion letter provides that “an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave” and must provide the employee with their eligibility for the protection of the law within 5 days of being notified of the potentially qualifying leave.

Child playing in muddied waters

Many years ago, this was very clear to the industry. If a leave was FMLA qualified, it must be designated as such. Period. However, a California court ruling in 2014 muddied these waters by ruling in favor of the employer in the Escriba vs. Foster Poultry Farms case. The panel held that the district court was not mistaken in denying the plaintiff’s motion for summary judgment because an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection.


After this ruling, a smattering of employers started to allow employees to take other leave types in lieu of FMLA. It’s easy to see how this could be interpreted as providing a “greater benefit” to the employee and thus would be of no consequence to the employer.

However, consider this scenario:

Your employee comes to you and advises that their spouse is having surgery on a specified date. They would like to take some vacation time to stay at home and care for them for a week, returning to work the following Monday. You offer them FMLA leave, but they prefer to use PTO. You’re safe, right? You’ve saved your employee the hassle of creating an FMLA claim, and of having their provider certification filled out. No harm done.

However, your employee does not return to work on Monday, when they said they would. Nor do they call in, which violates company policy. Your employee is also a no show on Tuesday and Wednesday, with no call to notify you of their need for additional leave. Unfortunately, these offenses support termination of the employee in question. Well now… what have you done? Almost exactly what Foster Poultry Farms did, and exactly what you should not do, according to this latest opinion letter.

As of March 14, 2019, the DOL has clarified that you have indeed made a mistake and that failure to follow the 5-day eligibility notice requirement may constitute an “interference with, restraint on, or denial of the exercise of an employee’s FMLA rights.”

So, what do you need to do?

Invoke the FMLA when an employee tells you that they need to miss work for their sick parent, spouse, child or themselves. Every. Single. Time. And remember, you can allow employees to take PTO in conjunction with the FMLA.

So, the next time one of your employees needs leave for an FMLA-qualifying reason, listen to what the DOL has advised and designate it as such.

If you are unsure about the types of leave your employees are eligible for, download our comprehensive Leave of Absence Explainer guide.

Recommended Posts
Automation Software Technology ProcessHonest Belief Investigation