On March 14, 2019, the U.S. Department of Labor (DOL) issued an opinion letter, FMLA 2019-1-A. This letter addressed compliance issues under the Family and Medical leave Act (FMLA). Specifically, the DOL addressed whether an employer could voluntarily allow an employee to exhaust some or all available paid sick (or other) leave before designating leave as FMLA-qualifying and therefore delay “starting the clock” on FMLA protection.
The FMLA provides eligible employees with up to 12 workweeks of unpaid leave during a 12-month period for certain family and medical reasons or to address certain qualifying events arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty). It also permits eligible employees to take up to 26 weeks of leave to care for a covered servicemember with a serious injury or illness. At the conclusion of the leave, an employee generally has the right to return to the same or equivalent position.
In its opinion letter, the DOL makes clear that employers cannot delay the designation of FMLA - any paid leave would be “substituted” for unpaid leave and continue to count against the FMLA permitted maximum.
The DOL states that the clock starts, “[o]nce an eligible employee communicated a need to take leave from a FMLA qualifying reasons, neither the employee nor the employer may decline FMLA protection for that leave.”
SMACNA members covered by FMLA are encouraged to pay close attention to their obligations of tracking and providing FMLA leave. An item to important note is that a collective bargaining agreement can expand the leave benefits of eligible employees. However, said agreement cannot waive or restrict those rights. For a timely refresher of which contractors are covered by FMLA and obligations thereunder, read more here.