Opinions from Wage and Hour Division clarify FMLA compliance

At the request of interested parties, the U.S. Department of Labor’s Wage and Hour Division occasionally issues guidance in the form of opinion letters that serve as written explanations of Family and Medical Leave Act requirements as applied to specific facts.

The FMLA provides up to 12 weeks of job-protected unpaid leave per year “to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.”

On Aug. 8, the division issued an opinion letter addressing whether an employee can take intermittent FMLA leave to attend meetings at her children’s school to discuss an Individualized Education Program. The employee’s two children have FMLA-qualifying health conditions and receive physician-prescribed occupational, speech and physical therapy from the school district. The children’s doctors had provided medical certifications to support the employee’s need to take intermittent job-protected leave for doctor’s appointments, which the employer approved. The employer, however, did not approve the employee’s request to take intermittent leave under the FMLA to attend IEP meetings.

The division determined that intermittent leave to attend IEP meetings to address the educational and special medical needs of a child does qualify for FMLA leave. In its opinion letter, the Wage and Hour Division cited the FMLA’s allowance for leave to provide physical and psychological care to a family member, including arrangements for changes in care.

On Sept. 10, the division issued an opinion letter addressing whether an employer may delay designating paid leave as FMLA leave if the delay complies with a collective bargaining agreement and the employee prefers the delay.

The employee in this case worked for a local government agency and was subject to a collective bargaining agreement that provided job protection for paid family and medical leave. Under state civil service laws, paid leave taken under the collective bargaining agreement was treated as continuous employment that does not affect seniority status, but unpaid leave, including FMLA leave, was not. The collective bargaining agreement, therefore, provided better benefits to bargaining unit employees who, in order to preserve their seniority status, preferred to postpone using unpaid FMLA leave until after they had used their accrued paid leave.

Relying on an opinion letter from earlier this year, the employer announced a change in its leave policy, stating that it would designate an employee’s leave request as FMLA-qualifying as soon it had enough information to make that determination. The change meant that the accrued paid leave would run concurrently with FMLA unpaid leave.

The division determined that an employer may require – or an employee may elect – to run unpaid FMLA leave concurrently with accrued paid leave under a collective bargaining agreement. An employer is responsible for designating leave as FMLA-qualifying leave, giving notice to the employee, and providing the employee with important information (e.g., eligibility for FMLA leave, the need for medical certification, continuation of health insurance benefits). An employer that does not follow the FMLA’s notice requirements may be charged with “interference with, restraint on, or denial of the exercise of an employee’s FMLA rights.”

Therefore, once an eligible employee notifies the employer of the need to take leave for an FMLA-qualifying reason, an employer may not delay the designation of the leave as FMLA leave. Moreover, under the specific facts of this case, the employer must permit an employee to accrue seniority during any portion of FMLA leave that runs concurrently with the leave that’s protected by the collective bargaining agreement, because state law allows the accrual of seniority only during paid leaves of absence.

The opinion letters may be found on the Wage and Hour Division website at https://tinyurl.com/whdaug8 and https://tinyurl.com/whdSep10.