The Wage and Hour Division (WHD) of the U.S. Department of Labor has issued guidance that collectively-bargained leave policies cannot supersede the requirements of the Family and Medical Leave Act (FMLA), even if the bargained-for policies are more generous. In FMLA2019-3-A, the DOL declared that when an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave, even if a labor agreement otherwise permits the employee to save their FMLA leave until after they have exhausted paid leave.

Requirements Under the FMLA

The FMLA provides eligible employees with up to twelve weeks of unpaid leave in a 12-month period. Under the FMLA, employers may require, or the employee may elect, to “substitute” accrued paid leave to cover any part of the unpaid FMLA leave. The concurrent running of FMLA leave with other employer-provided leave prevents “leave stacking”, where the employee’s leave is extended end on end under multiple leave entitlements. Once an employer becomes aware that an employee needs leave for an FMLA-qualifying reason, it must provide the employee written notice designating the leave as FMLA leave.

Facts Provided by Employee Seeking Opinion

The employee requesting the WHD’s opinion indicated that their employer had implemented a recent policy change requiring its employees to substitute FMLA leave for accrued paid leave. However, the terms of a collective bargaining agreement permitted employees to delay the use of FMLA leave until after any available paid leave had been exhausted. The change to the employer’s FMLA policy meant that the collectively-bargained paid leave would run concurrently with FMLA leave, contrary to what the employer and union had negotiated.

Given the employer’s revised policy, the employee requested a DOL opinion on whether the employer must designate FMLA leave as FMLA leave when an employee would prefer to delay such leave. In the employee’s case, the use of FMLA leave meant that their seniority would cease to accrue during the leave period.

WHD Opinion and Analysis

The WHD opined that once the employer is given notice of the qualifying circumstances relating to the employee’s leave request, the FMLA mandates that the employer designate the leave as FMLA leave even if the employee prefers otherwise. Employers may provide more generous leave than that mandated by the FMLA so long as the terms of any employment practice do not reduce or deny FMLA benefits and protections, including immediate job protection during the period of FMLA leave.

As far as an employee’s seniority accrual, an employee’s entitlement is determined by the employer’s established policy. However, if the employer provides for the accrual of seniority under a paid leave policy, then it must permit the accrual of seniority during any portion of FMLA leave that is substituted for paid leave. Denying the seniority accrual would amount to interference with the employee’s FMLA rights.

The WHD determined that the employer in questions had properly required the designation of FMLA leave up front instead of allowing an employee to delay it but was required to continue accruing the employee’s seniority during the leave period. Employers whose FMLA policies call for the suspension of seniority accrual during FMLA leave but not other forms of leave must be mindful that when FMLA runs concurrently with other paid leave, the employee must be afforded any additional benefit provided under the more generous paid leave policy.


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