Last week, the U.S. Department of Labor’s Wage and Hour Division issued an Opinion Letter in which it stated that an employer may not delay the designation of leave qualifying under the Family and Medical Leave Act, even if the affected employee would prefer not to take FMLA leave, and employers may not designate more than 12 weeks of leave as FMLA leave.

The FMLA allows qualifying employees to take up to 12 weeks per year of unpaid, job-protected leave for family or medical reasons. The law allows employers to adopt policies requiring employees to exhaust accrued paid time off during what would otherwise be unpaid FMLA leave. Under these circumstances, an employee who has two weeks of accrued vacation at the start of a twelve-week FMLA leave would end up with two weeks of paid leave and ten weeks of unpaid leave. This raises a question: can an employee gain “extra” leave time by “delaying” the designation of leave as FMLA leave by using accrued PTO before starting unpaid FMLA leave? According to the new DOL Opinion Letter, the answer is no.

The DOL says that employers are prohibited from delaying the designation of FMLA-qualifying leave as such. The DOL points to regulations which state that, once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer can decline FMLA protection for that leave, regardless of whether the employee will be paid with accrued PTO during the leave. Likewise, the DOL says that employers cannot designate more than 12 weeks as FMLA leave (or 26 weeks for military caregiver leave). This is not to say that employer cannot provide leave benefits that are more generous than what is required under the FMLA. For example, nothing in the statute requires employers to force employees to use up accrued PTO during FMLA leave. Employers are free to give employees the option to use PTO during FMLA leave, or to save it for later. Likewise, employers may allow employees to take leaves of absence longer than 12 weeks, however such extended leaves cannot be designated as FMLA leaves. The DOL’s position is that FMLA leave starts as soon as the employer has enough information to determine that the leave is being taken for a FMLA-qualifying reason.

This new Opinion Letter puts the DOL at odds with the U.S. Court of Appeals for the Ninth Circuit, which held in Escriba v. Foster Poultry Farms (2014) that an employee can decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection.

Employers should review their FMLA policies and practices, and provide their front-line managers with training to recognize when an employee is requesting time off for a purpose qualifying for leave under the FMLA, so that the company can comply with its obligations for designating the leave appropriately. Employment counsel can help in this process.