DOL Opinion Letter: Employers May Not Delay Designating FMLA Leave and Employees May Not Decline FMLA Leave

The United States Department of Labor (“DOL”) recently issued an official Opinion Letter clarifying the federal regulations regarding an employer’s obligation to designate leave as FMLA-qualifying once it has obtained sufficient information to determine that the leave qualifies as FMLA leave.

Various provision in the FMLA regulations require an employer to designate employee leaves as “FMLA”-qualifying leave whenever the employer has determined that the leave is being (or has been) taken for one or more of the reasons covered by the FMLA. See, e.g., Sections 825.127(a)(4) and 825.300(d)(1) (“When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave.”)

Some employers have voluntarily permitted employees to exhaust some or all available paid sick (or other) leave prior to designating leave as FMLA-qualifying, even when the leave is clearly FMLA-qualifying. Similarly, some employees wish to decline requesting or taking FMLA leave—either because they would like to use other available leave and “save” FMLA leave, or because they do not want to make the effort to obtain a required medical certification, or for other reasons. The DOL Opinion Letter makes clear that neither of those options is permissible under the FMLA: “Once an employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.”

Can An Employer Provide Additional FMLA Leave?

No. An employer may provide leave in addition to FMLA leave, but not additional FMLA leave. Sound confusing? Under Section 825.700(a) of the federal regulations, an 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.” However, any additional leave should not be characterized as “FMLA” leave according to the DOL Opinion Letter: “An employer may not . . . designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.” As a result, any leave beyond the 12 weeks (or 26 weeks) is in addition to FMLA leave. Any paid leave to which the employee is entitled that also qualifies as FMLA leave must run “concurrently” with unpaid FMLA leave under Section 825.207(a), not consecutively.

Do Unions Represent Your Employees?

The DOL Opinion Letter has significant implications for unionized employers: Some labor organizations have relied upon the language in Section 825.700(a) to propose the inclusion of collective bargaining agreements provisions that provide greater than 12 weeks of FMLA leave for an employee with a serious health condition. For example, they have proposed that an employee may first use up to six (6) weeks of available paid sick leave at the start of a leave after childbirth, and then have the employer begin counting the employee’s 12-week FMLA entitlement period after the six weeks has passed. The unions have successfully convinced many employers to include collective bargaining agreements provisions that in effect require the employer to delay designating leave as FMLA-qualifying leave when it clearly qualifies as FMLA leave. Based upon the DOL Opinion Letter, such provisions are plainly in violation of the federal regulations and the DOL’s official position. The first 12 weeks must be counted as FMLA leave if it qualifies as FMLA leave. Employees are not permitted to “save” FMLA leave for future use and employers must always designate FMLA leave once they are certain that the leave is FMLA-qualifying.

Conflicting Court Opinion

The DOL’s Opinion Letter conflicts with a 2014 decision by the 9th U.S. Circuit Court of Appeals, Escriba v. Foster Poultry Farms Inc., which held that an employee may decline to have FMLA leave designated even if the reason for the leave qualifies for such job-protected time off (i.e., employees may use other available leave and “save” FMLA leave). The 9th Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Employers in those states should seek legal advice as to how to handle the conflict, but the DOL Opinion Letter may give employers in those states a defense if they follow the DOL rule.

Which 12-month Calculation Method to Use

FMLA Abuse and the “Rolling Back” method of
12-Week Entitlement Calculation

Scott D. Macdonald, Esq., SPHR, SHRM-SCP

What’s the best 12-month calculation method to use? Let’s examine that backwards: What’s the worst one to use?

The 2000 U.S. DOL Survey of employees asked leave-takers who used leave for health-related reasons (excluding disability due to pregnancy) if the condition required a doctors care or overnight hospital stay. It is worth noting that 99.1 percent of leave-takers who took leave under FMLA to address their own or a family member’s serious health condition reported that the condition required a doctors care. Furthermore, 67.0 percent indicated that they (or their family member) were in the hospital overnight. When asked to give the health condition, responses included heart attack, cancer, depression, and a variety of surgeries.

What’s more, of the six categories of “serious health condition” defined in Section 825.112, only one—chronic conditions—lends itself to significant abuse. Is the potential abuse you are trying to prevent hypothetical, or do you actually have a problem in your organization that you need to address? Why implement a calculation method that is overly cumbersome to administer based upon the premise that it’s the least “employee-friendly”, or for hypothetic abuse of a very small (single digit) percentage of employees who potentially might try to abuse FMLA leave?

As Paul Falcone, Vice President, Employee Relations, at Time Warner Cable in Los Angeles and a prolific writer on HR topics, stated in 2010, in his experience, about 3 to 5 percent of employees cause problems with FMLA, and that’s just a cost of doing business. “Manage the 95 percent,” he says, and sooner or later the abuse will catch up to the others. Source: BLR’s HR Daily Advisor.

The Rolling Back method of calculation may cause your organization to have to add a day, a portion of a day, an hour or even a fraction of an hour for each and every day an employee took leave during the previous 12 months. As a result, an employee may go in and out of FMLA-protected leave from one day to the next, depending on whether the leave was taken in a block of time or intermittently. Further complicating this issue is that an employee also may go in and out of eligibility if, as a result of having taken leave, the employee no longer meets the 1,250 service hour requirement. As a result, the 12-month entitlement period may change on a daily basis, and you may be required to send a new Eligibility Notice each time the employee’s eligibility for FMLA changes.

So ask yourself if it’s really worth having to calculate and recalculate each employee’s FMLA leave balance potentially on a daily basis, just to prevent either a hypothetical problem or one that involves such a small percentage of employees (who are likely to be problems for other reasons as well).

New eFMLA Features Now Included!

Dear eFMLA Community,

We are excited to announce the latest eFMLA System Update! You will now see the following new features included in your eFMLA account:

  • New Comprehensive Employee Reports- Located under ‘Reports & Forms’ in your Account Main Menu
    • Employee Report- This report provides a basic overview of each employee’s FMLA activity and information, including Employee ID #, # of EFIs, Department, Location and Work Week Hours.
    • Eligibility Report- This report lists the eligibility and leave information relating to each employee’s specific EFI(s), including Key Status, Eligibility Status, Leave Type, Leave Start Date, Amount of Leave Taken and Return to Work Date.
    • Leave Usage & Balance Report- This report shows a comprehensive overview of each employee’s total leave balance and usage, including Amount of Leave Taken and Amount of Leave Remaining.
    • Email & Telephone- This report lists the contact information for each employee in the database.
    • Search Leave Remaining- This search feature allows you to enter a maximum number of leave hours remaining and view all employees who fall below that number of hours.
    • Note: all of the information in the reports above can be downloaded into a comprehensive Excel spreadsheet report.
  • Cover Letter Signature- Choose which eFMLA administrator’s signature and contact information will appear in each Cover Letter.
  • CC Option- Choose to send copies of employee emails to additional recipients using the CC feature on the Email Miscellaneous Documents and Email Employee Forms pages.
  • Email View- View a copy of an email to an employee upon sending.
  • Employee Profile List Pages- Lengthy Employee Profile Lists have been divided into segments (1-50, 51-100, etc.) for easier navigation.
  • Miscellaneous Bug Fixes

These new features will provide you with even more comprehensive eFMLA management. Please direct all questions and comments to or reach us by phone at 855-488-FMLA (3652).

Thank you for using eFMLA!

Federal Paid Sick Leave Discussions

Check out this recent article on paid Federal paid sick leave, posted by

recent study by the Bureau of Labor Statistics found that about 40% of the U.S. workforce, or more than 55 million people, don’t get any paid time off. That could change if a new bill before both houses of Congress is eventually passed.

The Healthy Families Act was recently introduced by Rep. Rose DeLauro (D-CT) in the House (H.R. 1286) and Sen. Tom Harkin (D-IA) in the Senate (S.631).

According to a rundown from the employment law firm Jackson Lewis, the HFA would apply to all private employers with 15 or more employees as well as public agencies.

Here’s Jackson Lewis’ rundown of how the law would work:

Employees would earn no less than one hour of paid sick time for every 30 hours worked, up to a maximum benefit of 56 hours per calendar year. Workers would start accruing the sick leave entitlement from their first day of employment, but wouldn’t be able to start using the leave until they’ve worked 60 calendar days.

Employers could allow employees to borrow unearned paid sick time.

Standards similar to FMLA

The administration of the law — and the reasons for which employees could use their paid sick time — and would closely mirror the FMLA.

For example, permitted uses of paid sick time would include (among others):

  • an employee’s own physical or mental illness, injury, or medical condition
  • the need by an employee to obtain a professional medical diagnosis or care, and
  • an absence to care for a child, a parent, a spouse, a domestic partner or any other individual whose close association with the employee is the equivalent of a family relationship, who has a physical or mental illness, injury, or medical condition or is in need of obtaining a professional medical diagnosis or care.

And, like the FMLA, paid sick time under the Healthy Families Act must be provided upon the oral or written request of the employee, and employees must make reasonable efforts to schedule paid sick time so as not to unduly disrupt the employer’s operations.

Employers would be allowed to require that a request for paid sick time be supported by a medical certification issued by a healthcare provider if the period of paid sick time covers more than three consecutive days.

The employee must provide a copy of the certification to the employer no later 30 days after the first day of paid sick time.

What are the odds?

On one hand, there’s the fact that the HFA’s been introduced in Congress every year since 2004 and never gone anywhere.

On the other, times change. Support for paid sick leave laws has never been stronger.

Seattle, Washington, D.C. and San Francisco recently passed similar laws, and in 2012 Connecticut became the first state to pass a law mandating paid sick leave.

In addition, similar bills are working their way through city councils in Philadelphia and Portland, OR.

eFMLA New Feature: State FMLA Resources!

Dear eFMLA Community,
We are pleased to announce the latest addition to your eFMLA experience! Tracking FMLA leave is now even more comprehensive with our new State FMLA Resource Pages. These pages includes general overviews of each state’s specific FMLA regulations, as well as links to additional state specific resources and information.
To view the State FMLA Resource Pages, go to “Reports & Forms” in your eFMLA Main Menu. Click on “State Family/Medical Leave Requirements” and click on a state name of interest to view a drop-down list of additional resources.
Please contact eFMLA Customer Service for any questions or comments by phone (855-488-3653) or email (, Mondays-Fridays 9-5pm.
Thank you for using eFMLA!

When FMLA Leave and Facebook Photos Do Not Mix

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Read about the latest employee FMLA mishap when Facebook pictures proved FMLA abuse, as published in

When it comes to abusing FMLA leave, this employee failed in a particularly funny way — and she only has herself to blame. Here are the details of the case: Carol Lineberry worked as a nurse for a hospital when she was hurt on the job and began experiencing lower back and leg pain. She requested, and was granted, FMLA leave. During that time, she took a pre-planned vacation to Mexico, which was approved by her doctor, who said the trip wouldn’t be as demanding as her job and wouldn’t affect her recovery. While there, she posted a number of Facebook photos of herself drinking, riding in a motorboat, holding her grandchildren, etc. When her colleagues saw the photos online, they began to think Lineberry was abusing her leave and reported her to upper management.

Wheelchairs or no wheelchairs?

Here’s where things get interesting. About the same time, Lineberry emailed her manager to complain that she hadn’t received a get-well card from her colleagues. Her manager responded that, “since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming you would be well enough to come back to work.” Lineberry replied that she had been in a wheelchair for the entirety of her travel to Mexico and that she couldn’t stand for more than 10 minutes at a time. That sounded suspicious to company officials, who reached out to Lineberry’s physican for clarification on her functional capabilities. The verdict: Lineberry could stand for only 15 minutes, couldn’t push or pull more than 20 pounds, and couldn’t lift more than 5-10 pounds. That didn’t line up with what Lineberry appeared to be doing in Mexico, so the company decided to fire her. Per company policy, the company brought Lineberry in for an investigatory interview, where Lineberry finally ‘fessed up to lying about needing a wheelchair on her vacation. The company then officially fired Lineberry for violating the hospital’s dishonesty policy.

She was Fired for Lying

Then Lineberry sued, claiming FMLA interference and retaliation. No way, said the court. Lineberry’s termination, the court pointed out, had nothing to do with her FMLA leave – it was because she had lied to the company, which violated its policy against dishonesty. The court said it best:

“It is undisputed that Plaintiff admitted … that she lied about the use of the wheelchair at the airports on two occasions. Based on such undisputed dishonesty, Defendants had a right to terminate Plaintiff — without regard to her leave status because the FMLA does not afford an employee greater rights than she would have if she was not on FMLA leave.”

Case closed.

The case is Lineberry v. Richards.

View the full article here.

New Bill Could Expand FMLA to Cover Part-Time Employees

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Check out the latest news from the Employer Handbook!

Under the Family and Medical Leave Act (FMLA), employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.

Consequently, part-time employees generally do not qualify for FMLA leave because they do not meet the 1,250-hour requirement.

However, a new bill introduced last month in the U.S. House of Representatives would change that if signed into law. It’s called the Part-Time Worker Bill of Rights Act of 2013 and you can download a copy of it here.

The Part-Time Worker Bill of Rights Act of 2013 would remove the 1,250-hour requirement. Thus, any employee with at least one year of service, working at a location where the company employs 50 or more employees within 75 miles, would qualify for FMLA.

Presently, the bill sits in Committee. It has a single sponsor, Rep. Janice Schakowsky [D-IL9], gives it a 1% chance of passing.

Check out the original article here.

Tenth Circuit Upholds Employee Termination 2 Days After FMLA Leave Request

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A recent court ruling upheld an employee’s termination two days after requesting FMLA leave. Check out the full article below.

The Tenth Circuit Court of Appeals, in Brown v. ScriptPro, LLC, 2012 U.S. App. LEXIS 24364 (Nov. 27, 2012), recently clarified that discharging an employee within two days of a request for medical leave does not by itself establish a violation of the Family and Medical Leave Act (FMLA) if there is uncontroverted evidence that the employee would have been discharged in the absence of the leave request.

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New Study: FMLA Leave Causes Need for FMLA Leave

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A new study from the Reed Group suggests that employee’s who take FMLA leave to act as caretakers for a loved one are likely to need FMLA leave for themselves soon after.

Study: Disability Claims After Intermittent FMLA Indicate That Caregivers Are Finding It Hard to Cope

Here’s a heads-up to human resources pros: If you have employees using the Family and Medical Leave Act, don’t be surprised if they soon ask for short-term disability too.

In a forthcoming report, Westminster, Colorado-based Reed Group says employees who are granted FMLA leave are three times more likely to file short-term disability claims within six months than employees who don’t request FMLA. The report is based on analysis of 112,000 FMLA claims that were closed from 2008 to 2011.

The full report is set to be released in October, although Reed Group released excerpts in advance to the media this month. Continued after the jump…

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Video Guide to Reducing FMLA Abuse

Take a look at this helpful video posted by BLRInc to learn some new strategies for reducing FMLA abuse in your company!