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Illinois Attorney Sean Darke Clarifies FMLA Designations

Chicago attorney Sean F. Darke has issued a recent Litchfield Alert, “No More Rejecting FMLA Leave Designation—DOL Provides Clarity.” In the Alert, Sean discusses the recent Department of Labor Opinion letter regarding employers’ responsibility when designating an employee’s leave of absences as it relates to the Family and Medical Leave Act (FMLA).

Background
Employees often try to delay designating qualifying FMLA leave time by asking the employer to allow them to first exhaust their earned paid time off, earned vacation time, or other available leave policy. However, the recent DOL opinion letter clearly end any doubt as to the employer’s responsibilities in designating qualifying leave immediately, regardless of how the employee wants the designate any time off.

Details
The Department of Labor (DOL) recently issued an opinion letter providing guidance to employers on when to designate qualifying leave under the Family Medical Leave Act (FMLA). The designation of leave for FMLA purposes has often been frustrating for employers, despite the federal code of regulation providing the employer’s responsibilities when designating qualified leave under 29 C.F.R. 825.301(a).

The DOL’s recent opinion letter empathically provides that it’s the employer’s responsibility to immediately designate qualifying leave as FMLA leave. As with any FMLA situation, an employer must first obtain enough information from their employee to determine if the requested leave qualifies under FMLA. Once determined, the employer must notify the employee of the FMLA designation. Regardless of the employee’s desire or request not to designate the leave as FMLA, the DOL’s opinion letter makes it clear that the employer must designate the qualifying FMLA leave immediately. Although an employee may want to extend their leave by exhausting any earned PTO, vacation time or other employer leave policy prior to the 12 weeks allowed under the FMLA, the DOL’s opinion letter eliminates that option. The DOL opinion letter further states:

“[a]n employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.”

The DOL clearly places the onus on the employer to make the designation and neither the employer nor the employee can delay that designation. Therefore, once the employer obtains enough information that the employee is requesting FMLA leave, the employer must designate that leave as FMLA qualifying leave.

Summary
The DOL opinion letter puts the Ninth Circuit in the spotlight again, by specifically citing the Ninth Circuit decision in Escriba v. Foster Poultry Farms, Inc., where the Ninth Circuit held that an employee can decline the designation of qualifying leave under FMLA. Since the Ninth Circuit does not need to follow a DOL opinion letter, employers in California will want to discuss their specific situation with an employment lawyer, and expect a court fight over this issue in the years to come.

To read Sean’s full summary, “Illinois’ New Minimum Wage Law,” click here. Sean focuses his practice on defending businesses in complex employment and business litigation in federal and state courts and advises businesses on the navigation of numerous employment and labor laws across the country. To learn more about how employment and labor laws affect your business, please contact Sean Darke.