The Family Medical Leave Act (FMLA) is admittedly complex. Still, covered employers are required to strictly comply with its terms. To assist employers as they navigate the intricacies of the FMLA, the U.S. Department of Labor (the “DOL”) recently issued several opinions concerning some difficult and unresolved issues.
FMLA Benefits to Be Tapped First
According to the DOL, once an eligible employee learns that his or her absence from work falls under the umbrella of FMLA protection, the 12-week leave benefit is triggered. In such cases, covered employers are advised not to permit workers to take paid sick time that may be available to them before first using their FMLA leave. As otherwise stated, employers must start the clock running on workers’ 12 weeks of FMLA time as soon as a worker’s absence is determined to qualify for leave under the federal statute. In its opinion letter, the DOL also noted, however, that “nothing in FMLA supersedes any provision of state or local law that provides greater family or medical leave rights than those provided by FMLA.” To that end, an employer may provide additional leave when FMLA leave is exhausted (but such additional time cannot be designated as FMLA leave.)
Of note, the DOL’s opinion directly contradicts a Ninth Circuit ruling that specifically allows workers to defer FMLA leave and take paid time off instead. In Escriba v. Foster Poultry Farms (decided back in 2014), the court held that employees could decline to use FMLA leave. Given this decision, employers in the Golden State (which is decidedly employee-friendly) shouldn’t be too quick to change their current policies as they pertain to family or medical leave. Rather, the DOL’s opinion, which is not binding, simply suggests that employers may prevent employees from extending their FMLA leaves by using paid time off first.
Organ Donors Covered Under the FMLA
Another question often raised is whether a voluntary organ donation falls within the scope of the FMLA. As otherwise stated, are these procedures an impairment or physical condition that qualifies as a serious health condition under federal law? In a separate opinion letter, the DOL has decided that they are. According to the DOL, organ donations surely trigger employers’ FMLA leave obligations.
Incremental Leave
The FMLA allows workers to take leave in periodic (read: noncontinuous) increments. But what about that employee who elects to be out of the office – say – every Friday? Is there anything an employer can (or should) do about that? The answer is tread lightly.
While such a pattern of absence from the workplace may be difficult for an employer (both in terms of inconvenience and tracking the time away), it’s absolutely within a worker’s rights to take necessary time off pursuant to the FMLA to attend to personal or familial care. Still, an employer can request documentation that confirms that an employee must be out on Fridays (or whatever the relevant day or days may be), and workers must do their best to schedule leave so that interference with company operations are kept at a minimum. But all things being equal, if an employee’s reason for being absent from work on “Fridays” is legitimate, he or she can take leave on those days under the FMLA.
The Bottom Line
No doubt, the intricacies of the FMLA can be a bit tricky. To reduce your company’s administrative burden and exposure under the law, ensure complete and consistent documentation of all requests and accurate tracking of FMLA leave time. And, in the event you have questions about your obligations under the FMLA, the California Family Rights Act (CFRA) or any other employment-related issues you may be facing, feel free to contact Lara Shortz at (310) 229-5500 or [email protected] Kathryn Lundy (212) 730-7700 or [email protected].
This blog post is not offered, and should not be relied upon, as legal advice. You should consult an attorney for guidance in specific situations.
