Union employees are not permitted to delay designation of FMLA time while they use job-protected accrued paid leave, even where past practice or a collective bargaining agreement suggests otherwise.
The U.S. Department of Labor’s Wage and Hour Division reiterated this interpretation on Tuesday in an opinion letter issued in response to an inquiry from a union employee. The letter follows a similar one issued in March, though that prior guidance was not explicitly addressed to the union context.
Tuesday’s letter involved a “local government public agency” subject to one or more CBAs. The agreements permitted employees to delay taking FMLA leave until after CBA-protected accrued paid leave had been exhausted. But in response to the DOL’s March guidance, the local government agency changed this practice and now requires employees to take CBA-protected paid leave concurrently with FMLA leave. The department was asked for an opinion on whether an employer in this context “must designate FMLA-qualifying leave as FMLA leave when an employee would prefer to delay the start of FMLA leave.”
In response, the DOL reiterated its prior position:
“Once your employer has enough information to determine that an employee’s leave request qualifies as FMLA leave, your employer must designate the leave as FMLA leave. . . [A]n employer may not delay designating such leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave . . . This is the case, for instance, even if the employer is obligated to provide job protections and other benefits equal to or greater than those required by the FMLA pursuant to a CBA or state civil service rules.”
The letter goes on to approve the local government public agency’s change in practice.
The department has now twice made clear that employers must designate any leave that qualifies as FMLA as soon as possible, without regard to CBA provisions or past practice, as the letter suggests CBA provisions to the contrary may violate federal law. The regulations require employers to provide a written “designation notice” to an employee. The notice must be provided within five business days after the employer has enough information to determine that the leave qualifies as FMLA.Our practice group regularly provides advice to employers on FMLA issues, both in and outside of the union context. Please contact me or any member of the Barley Snyder Employment Practice Group for assistance with any FMLA questions you may have.