Employer May Not Delay FMLA Designation Pursuant to Collective Bargaining Agreement

The Department of Labor (DOL) has released a new opinion letter under the Family and Medical Leave Act (FMLA), in which it states that an employer may not delay the designation of FMLA leave even where a collective bargaining agreement (CBA) provides for such delay.

Opinion letters respond to a specific wage-hour inquiry to the DOL from an employer or other entity and represent the DOL’s official position on that particular issue. Other employers may then look to these opinion letters as general guidance.

In FMLA2019-3-A, the employer was party to a CBA under which employees may delay taking unpaid leave, including FMLA, until all CBA-protected accrued paid leave is exhausted. Paid leave is treated as continuous employment for purposes of seniority, while unpaid leave is not, and thus employees would prefer to postpone using unpaid FMLA until after they have used the paid leave. The employer expressed concern about the impact of the DOL’s recent opinion letter, FMLA2019-1-A, in which the DOL stated that an employer may not delay designating FMLA leave that is qualifying, even at the request of the employee (which we discussed in our March 2019 E-Update).  According to the employer, requiring employees to take unpaid FMLA before taking accrued paid leave may negatively impact their seniority status under the CBA.

The DOL reiterated the same principle it articulated in its recent opinion letter – that once the employer has sufficient information to determine that the leave qualifies as FMLA leave, it must be designated as such. This is the case even if the employer is obligated by a CBA to provide protections and benefits greater than those required by the FMLA. The DOL further stated that, “[i]f, pursuant to a CBA and other policies, [the] employer provides for the accrual of seniority when employees are utilizing accrued paid leave, it must permit employees to accrue seniority when the employee is substituting FMLA leave for paid leave.” The failure to do so would constitute interference with the employee’s FMLA rights. If the FMLA leave runs concurrently with the accrued paid leave under the CBA, the employee’s seniority status would be the same as if the employee took only CBA-protected paid leave.

The DOL notes, in a footnote, that the FMLA statute specifically provides that an employee may, but is not entitled to, accrue seniority while on FMLA leave. However, it further notes that the statutory prohibition against discriminating against employees taking FMLA would require that an employer’s established policy for providing benefits – in this case, the accrual of seniority – while on other forms of leave must be applied to FMLA leave.