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On March 14, 2019, the Department of Labor (DOL) issued an opinion letter clarifying whether an employer may delay designating paid leave as Family and Medical Leave Act (FMLA) leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement. While further explanation is provided below, the short answer from the DOL is that an employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.


As many employers that have dealt with FMLA leave are aware, the FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave per year for qualifying family and medical reasons.  While each FMLA leave scenario provides a unique set of facts for an employer to analyze, and each employer may have its own policies regarding use of paid time off during FMLA, the DOL made clear that certain aspects of FMLA leave should be uniform for all employers.

 While many employers allow, or even require, employees to take or substitute accrued paid leave to cover any part of the employee’s unpaid FMLA leave, under the FMLA, and as clarified in the March 14th opinion letter, this type of paid leave substitution runs concurrently with the unpaid FMLA leave. Thus, employees with accrued paid leave who are required to take that leave during any unpaid leave of absence, such as for FMLA, must take the paid leave during their FMLA leave – not before FMLA leave. 

The opinion letter further clarifies that employers who have implemented a substitution policy are not allowed to delay designating FMLA-qualifying leave as FMLA leave until after the employee has used up all accrued paid leave.  The DOL clarified that 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.  On the contrary, once an employer has enough information to determine whether an employee’s leave is being taken for an FMLA-qualifying reason, the employer must provide a written designation notice to an employee within 5 business days. This is all to say that an employer may not delay designating FMLA leave for a qualified employee, regardless of whether the employee has accrued paid leave.

The DOL also made it clear in its opinion letter that employers are prohibited from designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.  Employers who want to give employees additional time off of work can provide that time based on company policy leave or by other means, but it cannot be labeled as additional FMLA leave if it would provide an employee more than 12 weeks of leave (or 26 weeks of military caregiver leave).  While this clarification likely is not a problem for many employers, it is important to note that additional leave for employees on FMLA must be identified as company provided leave, not additional FMLA leave.

If you have any questions regarding the DOL’s new opinion letter, FMLA leave or how your company’s policies may be affected by this new letter, please contact your Thompson Coe attorney at (651) 389-5000 or at  You can also find additional information and tips for your company and HR professionals at            

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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