The U.S. Department of Labor (DOL) issued an opinion letter on March 15, 2019 that answered the question of “whether an employer may delay designating paid leave as Family and Medical Leave Act (FMLA) leave or expand their FMLA leave beyond the statutory 12-week entitlement.” The DOL’s answer in short: No way.

Guidance from the DOL on this issue is significant for employers because it resolves the uncertainty created in 2014 when the U.S. Ninth Circuit Court of Appeals decided in Escriba v. Foster Poultry Farms, Inc. that the FMLA did not prevent an employee from making a voluntary decision to exhaust all accrued paid leave before actually beginning the 12-week, unpaid FMLA leave period.

The DOL was asked to weigh in on the policy of some employers who permit employees to voluntarily exhaust some or all available paid sick (or other) leave prior to designating leave as FMLA leave, even when the employee’s need for leave is clearly FMLA-qualifying. Employers have justified the practice on the theory that FMLA regulations suggest that an employer must observe any employment benefit or program that provides greater family and medical leave rights to employees than the rights provided by the FMLA. In other words, if the employer’s policy resulted in an employee receiving more than the 12-weeks of leave mandated by the FMLA, it would not violate the statute.

Rejecting this rationale was no problem for the DOL. FMLA regulations simply do not permit either the employer or employee to delay the designation of FMLA-qualifying leave as FMLA leave, even if the delayed designation is acceptable to both sides. According to the DOL:

Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA leave. . . . [W]hen an employer determines that leave is for an FMLA-qualifying reason, the qualifying leave is FMLA-protected and [must be] count[ed] toward the employee’s FMLA leave entitlement.

Ultimately, the DOL emphasized that its decision is not intended to prevent employers from voluntarily providing employees with more leave than is mandated by the FMLA, or from complying with state or local leave laws that are more generous than the FMLA. Rather, the takeaway for employers from the DOL’s opinion letter is that once you have enough information to determine that an employee has requested leave for an FMLA-qualifying reason, you may not delay, i.e., you must provide notice to the employee within 5 days (absent extenuating circumstances) that you have designated the leave as FMLA leave. The FMLA’s prompt designation rule must be followed, even if your employee leave policies are more generous than required by federal law.