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Labor and Employment Alert: Recent DOL Opinion Letters Address Use of Paid Time Off and Intermittent Leave Under FMLA

Employers should take note of recent opinion letters issued by the U.S. Department of Labor (“DOL”) regarding the Family and Medical Leave Act (“FMLA”). While DOL opinion letters are not binding, they describe how the DOL would enforce certain statutes and regulations to specific circumstances presented by an employer, employee or other party requesting an opinion. In addition, they are utilized by courts as a guide in the decision-making process for cases under the FMLA.

Employees Declining FMLA Leave While Using Paid Time Off

Pursuant to the FMLA, once an employer becomes aware that an employee’s leave of absence qualifies as FMLA, it must designate the leave as FMLA. This is true despite an employee’s desire to exhaust available paid-time-off benefits prior to beginning FMLA.

On March 14, 2019, the DOL issued an opinion letter on this very issue. In doing so, it also created conflict with the 9th Circuit Court of Appeals decision in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014).

The FMLA entitles eligible employees to take up to 12 weeks of unpaid job-protected leave per year for the specific reasons outlined in the statute. The FMLA also provides certain leave benefits to eligible employees who are the spouse, son, daughter, parent, or next of kin of a covered service member for certain qualifying exigencies or to care for a service member with a serious illness or injury. Employers may require, or the employee may elect, to “substitute” accrued paid leave (vacation, sick leave, etc.) to cover any part of the unpaid FMLA period. In all circumstances, the responsibility for designating the leave as FMLA remains with the employer.

The DOL opinion addressed whether an employer’s practice of “voluntarily” permitting employees to exhaust some or all available paid sick (or other) leave prior to designating the leave as FMLA-qualifying is permissible. The DOL’s position is that an employer may not 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. This reasoning makes sense in the context of the FMLA’s strict requirement that once an eligible employee communicates the need for leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. Thus, when an employer makes the determination that leave is for an FMLA-qualifying reason, the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement. Further, once an employer has enough information to make a determination on whether the FMLA applies to the leave (i.e., generally after receipt and review of a Certification of Healthcare Provider for Employee Serious Health Condition), the employer must, absent extenuating circumstances, provide notice of designation of the leave to the employee within five business days. An employer cannot simply delay designating the leave as FMLA-qualifying after receiving sufficient notice and information to support the qualifying basis for the leave, even if the employee prefers to delay the start of the FMLA clock to allow him or her to exhaust other paid time off benefits first.  

The opinion letter also cautioned that employers are prohibited from designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA. If an employer’s policy provides that paid leave must be substituted for unpaid FMLA leave, the employee’s paid leave will count towards his or her 12-week (or 26-week) FMLA entitlement and will not expand that entitlement. It is important to keep in mind that employer policies should specify that periods of leave necessitated by a work related injury or short term disability should run concurrently with FMLA. However, as the FMLA entitles eligible employees to unpaid leave, employers may not require employee’s to utilize paid time off benefits if employees are also receiving percentage compensation through workers compensation or short term disability payments.

The DOL opinion is in direct conflict with the 9th Circuit’s 2014 Escriba decision. While the Escriba decision is only applicable to states within the 9th Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington), it held that an employee may decline to designate time off as FMLA leave, even if the reason for the leave qualifies for job-protected time off. However, it has also been viewed as an outlier since it directly contradicts the FMLA regulations.

Regardless, the recent opinion letter serves as a reminder to employers of the technical aspects of the FMLA and emphasizes that strict compliance with its requirements is essential to avoid costly litigation. Similarly, it is a reminder that covered employers should maintain and adhere to specific policies outlining the requirements of FMLA leave.  

Intermittent Family Leave

The FMLA defines a “serious health condition” as an illness, impairment or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. It provides, in relevant part, that an eligible employee may take up to twelve (12) weeks of job-protected leave per year “to care for the spouse, or a son, daughter, or parent of the employee, if such spouse, son, daughter, or parent of the employee has a serious health condition.” For purposes of the FMLA, care for a family member includes “both physical and psychological care” and “mak[ing] arrangements for changes in care . . .” Such leave may be used intermittently or on a reduced leave schedule when medically necessary due to a family member’s serious health condition. However, an employer may require an employee to provide sufficient certification from a qualified health care provider to support the request to take leave.

On August 8, 2019, the DOL issued an opinion clarifying the use of intermittent leave for purposes of caring for family. The issue involved the request for an opinion on whether an employee may take leave under the FMLA to attend special education committee meetings at which an Individualized Education Program (IEP) of an employee’s child would be discussed. The letter indicated that the child had a serious health condition and that the employee had received a certification from the child’s doctor of the employee’s need to take intermittent leave to care for the child and that the employer had approved her taking FMLA leave intermittently to take the child to medical appointments. However, the employer had not approved the employee’s request to take FMLA leave to attend IEP meetings.

The opinion summarized the IEP meetings and their purpose in the context of the child’s serious health condition. It noted that the child received pediatrician-prescribed occupational, speech and physical therapy provided by the school district and that the school held IEP meetings four times per year to review the child’s educational and medical needs, well-being and progress. Each IEP meeting would also include participation by a speech pathologist, school psychologist, occupational therapist and/or physical therapist employed or contracted by the school district to provide services under the requirements of the child’s IEP, as well as teachers and school administrators. The participants in the meetings provided updates on the child’s progress and areas of concern; reviewed recommendations provided by the child’s doctors; reviewed test results; and made necessary recommendations for additional therapy.

Based on the facts presented, the DOL determined that the employee’s need to attend IEP meetings to address the educational and special medical needs of the child was a qualifying reason for taking intermittent FMLA leave. Specifically, the employee’s attendance at the IEP meetings was “care for a family member . . . with a serious health condition” which includes “maki[ing] arrangements for changes in care.” In addition, the DOL specified that an employee may “make arrangements for changes in care,” even if that care does not involve a facility that provides medical treatment. The employee’s attendance at IEP meetings was “essential” in order to assist participants in making medical decisions concerning the child’s medically prescribed speech, physical, and occupational therapy; to discuss the child’s well-being and progress; and to ensure that the school environment was suitable to the child’s medical, social, and academic needs. The DOL noted that this conclusion was consistent with existing agency policy.

Intermittent FMLA leave remains one of the most challenging issues faced by employers. While not a significant departure from current law, the agency’s position does clarify an area that may be less obvious to employers in the context of an eligible employee’s entitlement to leave.

The Labor and Employment Group at Bose McKinney & Evans can help ensure your organization is informed and ready to manage any labor and employment issue that may arise relative to the FMLA or any other labor and employment law. For more information regarding the FMLA or any other labor and employment question you may have, please contact your Bose McKinney & Evans labor and employment attorney.