United States Department of Labor Issues New Opinion Letters - Part 1

03.15.2019

Yesterday, the U.S. Department of Labor (DOL) issued three opinion letters. This is the first of a series of blog posts addressing the letters.

Notably, the DOL clarified that employers cannot allow employees to take paid leave in lieu of FMLA leave.  As you know, the FMLA allows workers to take up to 12 weeks of unpaid time off to care for family members or receive treatment for their own illnesses.

A few years ago, the 9th Circuit held that workers could defer FMLA time and take paid time off or other sick time instead, and essentially tack on the extra unpaid leave time thereafter.  The DOL clarified that the FMLA regulations directing employers to count leaves of absence under the act within five days of finding out they qualify means workers cannot delay their FMLA leave.  Moreover, if a worker who has accrued paid leave opts to use it at the outset, it counts toward their 12 week leave. 

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