On March 14, 2019, the Department of Labor's Wage and Hour Division (WHD) issued an opinion letter (FMLA 2019-1-A) providing some guidance relating to the Family and Medical Leave Act (FMLA). This Opinion Letter affirms that it is the employer’s obligation to commence FMLA and neither the employer nor the employee can delay the commencement of FMLA nor can they expand the duration of FMLA.
As background, the FMLA provides up to 12 weeks of job protected, unpaid leave (26 weeks for military caregiver leave) to eligible employees for the employee’s own serious health condition, to care for a family member with a serious health condition or for baby bonding.
Sometimes employees would like to delay the commencement of FMLA leave by using available paid time off. According to this Opinion, while paid time off can be substituted for all or a portion of FMLA, it cannot be used to delay the commencement of FMLA. In other words, the paid time off and FMLA run concurrently.
Further, this letter provides that the maximum amount of FMLA cannot be expanded. An employer, of course, can provide more generous leave than the FMLA requires and this is affirmed in the letter. However, the richer benefit would not in and of itself constitute FMLA. It is important to note, if the employer provides a richer benefit and if it intends that benefit be available during such extended leave, it is important to ensure that all relevant benefit plans and insurance contracts reflect this intent.
The information contained in this article is provided as general guidance and may be affected by changes in law or regulation. This article is not intended to replace or substitute for accounting or other professional advice. Please consult a CBIZ professional. This information is provided as-is with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.