DOL Issues Guidance on FMLA Leave

March 22, 2019

A Wage and Hour Division opinion letter addresses the longstanding issue of whether an employer must allow an employee to defer the designation of leave taken as FMLA leave in order to preserve the availability of FMLA-protected leave to a later date.

Despite a contrary Ninth Circuit decision, the opinion letter unequivocally states:  “Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave” and the leave “counts toward the employee’s FMLA leave entitlement.”

Takeaway: While opinion letters from the Wage and Hour Division’s administrator provide employers with a potential good faith reliance defense for actions that otherwise may constitute violations of law, this particular issue will likely have to be settled with further litigation.