Labor & Employment Law Update: Department of Labor Publishes New Guidance on FMLA Leave


The Department of Labor Wage and Hour Division (“DOL”) recently published new guidance on Family Medical Leave Act (“FMLA”) leave. In an opinion letter dated March 14, 2019, the DOL emphasized the need to timely designate leave as FMLA leave. The guidance aligns with current regulations, but past DOL practice and court decisions have not strictly enforced the timing of the designation. Employers who are covered by the FMLA (private employers with 50 or more employees within a 75 mile radius and governmental employers) may need to change their procedures and standard practices to align with the new guidance.

If an eligible employee informs a covered employer that the employee needs to take leave, the employer must promptly determine whether the leave is for an FMLA-qualifying reason. Once the employer has information that the leave qualifies for FMLA protection, the employer must designate the leave as FMLA leave within five business days of the notice. The employer should provide written notice of the FMLA designation to the employee. This timeline applies even if the employee would prefer to have the employer delay the designation, or if the employer has policies or a benefit plan that provide greater family or medical leave rights than the FMLA.

Timely designations of leave ensure that the correct amount of leave is FMLA-protected. Employees may generally take UP TO twelve weeks of leave under the FMLA. Even if an employer allows an employee to take additional leave, the DOL has clarified that an employee’s FMLA entitlement starts when the employee initially takes FMLA-qualifying leave and ends after twelve weeks regardless of whether the employee requires additional leave.

If an employee requests leave beyond the FMLA-protected time period, employers should still be aware of other contractual or statutory responsibilities that should be considered, including: whether the employee is entitled to a longer leave under a benefit plan of the employee (i.e., short term disability) or as an accommodation under the Americans with Disabilities Act; whether the employee has treated other employees differently under similar circumstances; or whether there is an workers compensation claim pending.

For assistance with FMLA policies, extensions of leave, or other labor and employment matters, contact Jaki Samuelson or Kay Oskvig at 515-288-6041.

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