The Rocky Mountain Employer


Labor and Employment Law Updates

U.S. Department of Labor: FMLA Leave Must Run Concurrently with Paid Leave

The United States Department of Labor (“DOL”) has taken the position that an employer must designate any leave of absence that qualifies under the Family and Medical Leave Act (“FMLA”) as FMLA leave,FN1 even if an employee wants to first exhaust paid time off benefits.FN2 Although the FMLA allows employers to adopt more generous leave policies than those required by the FMLA, the opinion letter clarifies that neither an employer or employee can decline the designation of FMLA leave if the leave is needed for an FMLA-qualifying reason. 

The DOL’s opinion letter conflicts with a 2014 decision by the Ninth Circuit Court of Appeals, which held that an employee may decline to designate time off as FMLA leave even if the reason for the leave qualifies for FMLA.FN3


Human resource departments should take note of the DOL’s position on this issue, namely, that an employer may not delay its designation of leave as FMLA leave while an employee is using paid leave or vacation time.  Employers must designate a leave as FMLA leave within five business days of learning of a qualifying reason or risk an FMLA interference or denial claim from an employee. 

Employers located in the Ninth Circuit are still technically subject to the conflicting Ninth Circuit decision. However, the DOL opinion letter may give authority to challenge the Ninth Circuit decision in the future.


FN1: The DOL sets forth its position in an opinion letter, which describes how the agency would enforce applicable statutes and regulations in specific circumstances presented by an employer, worker or other party who requests the opinion. Opinion letters are not binding, but there may be a safe harbor for employers that show they relied on one.

FN2:   The FMLA entitles eligible employee of covered employers to take up to 12 weeks of unpaid job-protected leave per year for specified family and medical reasons. 29 U.S.C. §  2512(a).

FN3:Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014), available at (stating that “there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA” and holding that an employee can affirmatively decline to use FMLA leave). The Ninth Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.