FMLA Opinion Letter 2019-1-A on Leave Delay

Delayed leave under the Family and Medical Leave Act (“FMLA”) and related compliance issues were addressed by the Department of Labor in a recent opinion letter. FMLA 2019-1-A provided an opinion on whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the 12-week entitlement.

On March 14, 2019, the Wage and Hour Division of the U.S. Department of Labor actually issued three new wage and hour opinion letters. Individuals or entities may request an opinion letter from the Department’s Wage and Hour Division. These official written opinions provide guidance on how a particular law applies in the specific circumstances presented.

This article focuses on the FMLA opinion letter, and a separate article will address opinions related to the Fair Labor Standards Act (“FLSA”). Click on the link for our related blog post FLSA Opinion Letter on Residential Janitors.

Under the FMLA, covered employers must allow eligible employees to take up to 12 weeks of unpaid job-protected leave per year for specified family and medical reasons. In certain limited circumstances where an eligible employee is a military caregiver, leave may be extended up to 26 weeks to care for a spouse, son, daughter, parent, or next of kin who is a covered service member with a serious illness or injury.

The FMLA clearly provides that employers may allow or require employees to run their accrued paid leave concurrently with any part of the unpaid FMLA entitlement period. This is known as “substituting” accrued paid leave. The employer is responsible for designating leave as FMLA qualifying leave. Absent extenuating circumstances, this triggers a written “designation notice” requirement within five business days after an employer “has enough information to determine whether the leave is being taken for a FMLA-qualifying reason.”

However, the FMLA allows employers to enact more generous leave policies. In other words, the FMLA guarantees a minimum entitlement of 12 weeks leave for eligible employees of covered employers, but employers may provide for additional non-FMLA sick leave. In such cases, employees may not bring suit under the FMLA if an employer violates its own non-FMLA sick leave policy that is more generous than the FMLA leave requirements.

Employers may not delay the designation of FMLA-qualifying leave. Neither the employer nor the employee may delay FMLA protection for leave once an employer has enough information to determine whether leave qualifies under the FMLA. Thus, that qualifying leave will be protected by the FMLA and count toward the employee’s 12-week allotment under the FMLA.

Additionally, while employers must observe their own employment benefit program that may be more generous than the FMLA, employers may not designate more than 12 weeks of leave (or 26 weeks in the case of military caregiver leave) as FMLA-protected leave.

By issuing this opinion, the Department of Labor’s Wage and Hour Division expressed its disagreement with the Ninth Circuit’s opinion in Escriba v. Foster Poultry Farms, Inc. which held that an employee may preserve FMLA leave for later use by instead electing to use non-FMLA leave for an FMLA-qualifying reason.

What this Means for Employment Defense Law Firms and EPLI Panel Counsel

Legal Expert Connections, Inc. recommends, creates, and implements an education-based marketing program for employment defense law firms and practice groups. Educating employers about employment laws in order to insure compliance and avoid litigation is a significant portion of an employment defense lawyer’s work. This article is yet another example for employment defense law firms to increase their visibility through blog posts, social media articles, client alerts, and continuing education seminars.

Employment Law Marketing Services for Defense Law Firms and EPLI Panel Counsel

This article is a sample of the content marketing services available from Legal Expert Connections, Inc. (and not for reuse or republication).  We have helped more than 150 insurance defense law firms in 36 states pursue new insurance panel counsel and self-insured clients and are very familiar with employment practices liability (EPLI) panels.

Legal Expert Connections, Inc. offers three key benefits to insurance defense law firms nationwide:

  1. We are the leading U.S. legal marketing agency specializing in the insurance defense market. We know the panel counsel process and can accelerate your business development efforts by identifying who you need to contact.
  2. You get a structured business development process. We guide your law firm through a proven three-step campaign that brings discipline, focus, and productivity to your marketing efforts.
  3. Increase revenue with professional, Bar-compliant legal marketing campaigns. We do the research to identify insurance panel managers, so you can focus your time on the business development process.

Contact Margaret Grisdela, an insurance defense marketing consultant, at 561-266-1030 or via email. Connect with Margaret Grisdela on LinkedIn.


This article is provided for educational purposes only. It is not to be interpreted as legal advice or an opinion in regard to any topic discussed. The article should not be used as a substitute for legal advice from a licensed attorney in your state. Every situation is different and circumstances vary widely depending on the governing state law, policy provisions, and related considerations.

© Legal Expert Connections, Inc. – Not to be used, copied or reproduced without permission.

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Margaret Grisdela

Legal Expert Connections, Inc.

We’ve helped 250 insurance defense law firms in 40 states with panel counsel campaigns involving Employment Practices Liability, Professional or Premises Liability, Auto, Trucking, Medical Malpractice, Construction Defects and more. Let us do the same for your firm.

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