In response to a specific inquiry, the U.S. Department of Labor (DOL) recently indicated that an employer is not permitted to delay the designation of an employee’s Family Medical Leave Act (FMLA)-qualifying leave, or allow more than the 12 weeks (or 26 weeks for military caregiver) of FMLA-protected leave.
The DOL carefully explained that FMLA-qualifying leave for an eligible employee cannot be refused by an employer or declined by an employee, “once an eligible employee communicates the need to take leave for an FMLA-qualifying reason.” Further, once an employee provides notice, an employer cannot delay designating leave as FMLA-qualifying, even if the employee later decides that they would like to delay the designation.
In terms of extending an employee’s FMLA leave, the DOL acknowledged that, “[a]n employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA.” See 29 C.F.R. § 825.700. But, it noted, this additional leave cannot be added to an employee’s 12 weeks (or 26 weeks) as FMLA-protected leave. For example, an employee cannot apply 2 weeks of paid leave to 12 weeks of FMLA-qualifying leave in order to create a 14 week FMLA-protected leave.
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