In a recent Opinion Letter ruling, the United States Department of Labor (DOL) examined the question of whether an employer subject to the federal Family and Medical Leave Act (FMLA) could permissibly allow an employee “to exhaust some or all available paid sick (or other) leave prior to designating leave as FMLA-qualifying?” The apparent intention of the employer submitting this inquiry was to permit such employee essentially to extend “additional FMLA leave beyond the 12-week FMLA entitlement” by adding some other leave at the beginning of the leave period. Another reason an employer might consider deferring its statutory FMLA eligibility determination could be simply to avoid that exercise when the leave is otherwise covered by another leave entitlement policy of the employer, whether paid or unpaid.
Since many Michigan employers have under the recently-enacted Michigan Paid Medical Leave Act undoubtedly created or modified their sick leave policies, this ruling presents a timely opportunity for your enterprise to avoid conflicts between the two statutes.
DOL’s OPINION
The DOL concludes that an employer may not defer or delay designating leave as FMLA or not FMLA. Applicable regulations, the Department notes, “require employers to provide a written ‘designation notice’ to an employee within five business days.”
The Department concludes that “(f)ailure to follow this notice requirement may constitute an interference with … or denial of … an employee’s FMLA rights.” This conclusion may be surprising, as an effective extension of leave would seem to benefit the employee, and it is an established principle under the FMLA regulations that employers may adopt leave policies more generous than those required by the FMLA.
MICHIGAN’S PAID MEDICAL LEAVE ACT
Michigan’s new Paid Medical Leave Act requires covered employers to provide paid leave for various purposes or reasons. Those reasons generally, but not in all cases, track the reasons a leave may qualify for FMLA protection. Based on the known principle that an employer may adopt a “more generous” policy than federal law requires, many employers may assume that allowing an employee to use paid leave under the Michigan Act would be permissible and would excuse them of any obligation under the FMLA while the worker is on paid leave.
NOT!
Moreover, one of the most common FMLA errors employers make is to fail to designate an absence as FMLA-qualifying even if the absent worker does not indicate that the leave is FMLA-eligible, and even if the employee doesn’t refer to FMLA or use the words or acronym. Applicable regulations require that whenever the employer “has enough information to determine whether the leave is being taken for a FMLA-qualifying reason” according to the Letter, the FMLA designation determination and notice must be provided within the five business-days period. And, note that this standard is not limited to information provided by the employee. The designation obligation arises as long as the employer has enough information on the nature of the reason for the absence to have reason to believe that the employee’s right to an FMLA-protected leave may be implicated.
THE RULE IN BLACK AND WHITE
Always provide notice of a designation of FMLA eligibility within five business days of when you have enough information to make that determination, whether an FMLA leave is requested, and whether or not the employee is eligible for some other leave, including a paid leave under the Michigan Act.
IMPORTANT P.S.: FREE ADVICE
Savvy employers know that FMLA regulations permit them to require use of other leave concurrently with FMLA leave. The reason to adopt such policy is to prevent the employee from obtaining more leave than the 12 weeks allowed by the FMLA. Thus, a Michigan employer may adopt a written policy requiring its employees to use – and even, exhaust — paid leave provided in conformance with the Michigan Paid Medical Leave Act while employees are on an FMLA-qualifying leave.
You can view the full letter here: https://www.dol.gov/whd/opinion/FMLA/2019/2019_03_14_1A_FMLA.pdf
Contact us if we can assist you in revising or reviewing your policies.
Fraser Trebilcock Shareholder Dave Houston has nearly 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.
Mark E. Kellogg’s breadth of knowledge and experience gives his clients unique insight into the special considerations associated with the cottage law practice. If you have any questions, you can reach out to Mark at mkellogg@fraserlawfirm.com or (517) 377.0890 for assistance.
