The Sophisticated Employer Blog

I think some employers get confused when they are subject to the Family and Medical Leave Act (FMLA) and have other leave of absence policies in a handbook or Collective Bargaining Agreement (CBA). Sometimes it’s almost like which comes first the chicken or the egg? Let’s see if we can answer this burning question.

For some reason, many employees don’t want to use FMLA and prefer to take leave under another leave policy or just use their sick time. This makes no sense. Are they trying to “save” it for a rainy day or do they think it reflects badly on them? FMLA actually provides significant rights and protections, including that the absence cannot be counted against them for disciplinary action. But you already know this; just like you know a no fault attendance policy violates FMLA.

Well, one employee who works for a “local government public agency” wrote the Department of Labor (DOL), Wage and Hour Division, asking if his or her employer was following the law. Let’s call the employee “Dave,” so we don’t have to keep saying he or she as the DOL’s opinion letters maintain the anonymity of the person seeking guidance.

Apparently Dave’s employer used to allow employees to use paid leave under the CBA before using unpaid FMLA leave. The employer also treated the paid leave under the CBA as continuous employment without affecting its employees’ seniority under the CBA and civil service rules, but Dave believed the same may not have been true for unpaid FMLA leave.

I don’t know about you, but right now I see some problems with the employer’s policy. Apparently, the employer did too because the policy was revised, thus earning the Dave's angst. The new policy requires an employee to use FMLA whenever the time off qualifies under it and the paid CBA leave now runs concurrently.

The DOL first emphasized that whenever an employer has sufficient information to determine that an employee’s leave request might qualify under FMLA, it must designate it as such and without delay. “[N]either the employee nor the employer may decline FMLA protection for that leave.” Moreover, this obligation exists regardless of CBA rights.

However, if the employer requires the FMLA leave and paid CBA leave to run concurrently, it must allow the employee to maintain seniority rights under the CBA leave. While FMLA does not require seniority to continue to accrue during leave, the anti-discrimination rules would prohibit discriminating against employees who are on paid leave and those who are on paid leave concurrently with FMLA.

While I may have forgotten to designate which leave was the chicken and which was the egg, the answer we care about is that an employer must always designate FMLA leave whenever the circumstances qualify under the act. If the employer fails to do so, it may count a FMLA protected absence for disciplinary action resulting in a violation. Conversely, if an employer counts time off as FMLA when it doesn’t actually qualify, it may later misinform the employee that the twelve weeks of FMLA leave have been exhausted, when they haven’t, again resulting in a violation.

Bottom line: it either is or isn’t FMLA qualifying leave, and the employer has to get it right. Sometimes it can be a tough call. That is when you need to consult with an experienced employment attorney.

Incidentally, the DOL declined to offer an opinion regarding the lawfulness of the employer’s prior policy. I think we know the answer to that. Hopefully, the limitations period has run.