Leave case managers and employers have a lot on their plate, from managing the Family Medical Leave Act (FMLA) to maintaining compliance. Luckily, a great resource for information on the FMLA, along with other labor legislation including the Fair Labor Standards (FLS) is the US Department of Labor (DOL)! The DOL's Wage and Hour Division often produces model forms and opinion letters for employers, case managers and even employees on those topics, to help with their compliance and understanding.
Speaking of opinion letters, the DOL has issued three this year alone with regards to the FMLA. To help you grasp the 2019 DOL opinion letters and remain compliant, we summarized them in a digestible format!
Letter 1: The obligation to designate FMLA-qualifying leave and prohibition on expanding FMLA leave
The first opinion letter by the DOL this year was issued on March 14, 2019, and addressed whether employers can permit employees to use their available sick leave (or other leave) instead of using FMLA leave, when the leave is clearly FMLA qualifying (i.e. the employee has cancer). The DOL also addresses whether an employer can permit an employee to extend their FMLA leave beyond their 12-week entitlement.
The simple answer to both these questions is no, an employer is not entitled to “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.”
Jeff Nowak of Littler provided some insights for employers about this opinion letter, and why employers can’t delay the designation of FMLA-qualifying paid leave or extend FMLA leave beyond 12-weeks:
- This opinion letter brings clarity to employers, who may have found this issue to be ambiguous in regards to FMLA administration. In short, employees don’t get the choice of whether an absence is covered by FMLA or not. When an absence is FMLA qualified, it must be designated as FMLA leave.
- This opinion letter is specifically helpful for unionized and public sector employers, because it affects them the most. The letter gives these employers leverage (to designate FMLA leave when it applies), since “collective bargaining provisions or public sector personnel policies allow employees to use paid, followed by FMLA leave.”
- Employers don’t have to be stingy with their paid/unpaid leave programs for employees, because of this DOL opinion letter. When FMLA leave ends, employers can provide additional leave to employees, however once the 12 weeks of FMLA leave has been used, employers can’t simply designate additional leave as FMLA.
Letter 2: Whether attending a Committee on Special Education meeting to discuss a child’s Individualized Education Program qualifies as FMLA leave
The second DOL opinion letter of the year was issued this summer, on August 8, 2019, and addressed “whether an employee may take leave under the Family and Medical Leave Act (FMLA) to attend a Committee on Special Education (CSE) meeting to discuss the Individualized Education Program (IEP) of the employee’s son or daughter.”
The purpose of a CSE/IEP meeting is to review the child’s progress, discuss their educational and medical needs, and their well-being. These meetings are for children who suffer from a “serious health condition” as defined by the FMLA: an illness, injury, impairment or physical or mental condition. IEP meetings can involve various health professionals, such as a school psychologist, speech pathologist, occupational therapist and physical therapist.
The simple answer to the question of whether an employee can attend these meetings and be covered by the FMLA is yes. Parents shouldn’t have to choose between their work and their family. The DOL opinion letter also reiterates that the meeting does not have to take place at a medical facility, stating that “...an employee may ‘make arrangements for changes in care,’ even if that care does not involve a facility that provides medical treatment.’”
As stated in the DOL opinion letter, “...an eligible employee of a covered employer may take up to twelve weeks of job-protected, unpaid FMLA leave per year ‘to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.’”
Some insights for employers on this opinion letter and how they can handle these IEP meeting requests include:
- This 2019 DOL opinion letter sheds light on “to care for” a family member, as more than just attending medical-related services and procedures and providing care for that family member. This is extended to appointments, meetings and consultations in relation to the care of that family member and qualifies eligible employees to use intermittent FMLA leave.
- Employers should consider both IEPs and 504 Plans as FMLA leave, since they both involve providing accommodations for children with disabilities in school.
- The employee should provide appropriate certification, in a timely fashion (well in advance) to support this leave request. This practice will help in preventing FMLA abuse.
Letter 3: Whether an employer may delay designating paid leave as FMLA leave due to a collective bargaining agreement
The third 2019 DOL opinion letter was issued earlier this month, on September 10, 2019, to address whether an employer may delay granting paid leave as FMLA leave, when the delay satisfies the regulations of a collective bargaining agreement (CBA) and the employee prefers that the designation is postponed.
The answer to this is no, neither the employee nor the employer can decline FMLA leave when the reason to take the leave qualifies as FMLA (as communicated by the employee).
The opinion letter clarifies that, “within five business days of learning of a FMLA-qualifying leave request from an employee, an employer must provide critical information to the employee about the FMLA, e.g., whether the employee is eligible for FMLA leave, whether the employee has to make arrangements for health insurance to continue.”
Some insights for employers about this opinion letter and how they can handle FMLA and CBAs include:
- Employers should be aware of complying with the FMLA with regards to employees exchanging paid leave during FMLA leave.
- Employers can still provide additional paid or unpaid leave (through a CBA) as long as it complies with FMLA leave.
- Employers should be aware that their policies and practices can’t require their employees to postpone FMLA leave, when that leave qualifies as FMLA (given sufficient information).
The 2019 DOL opinion letters all provide great insight for employers (and employees) on many aspects of FMLA leave, such as when to use it, if it can be extended, if it can be used for IEP meetings, and how to navigate the FMLA and CBAs.
As new opinion letters are produced, we’ll continue to provide these updates in a clear and concise format. Our leave law reference guide, Leave Genius, will also help you remain compliant and up to date with the latest leave laws!