Posted on Monday, April 1st, 2019.

A recurring issue under the federal Family and Medical Leave Act (FMLA) is whether FMLA leave is to be taken concurrently with sick leave and other forms of leave that the employer provides, or may be deferred until the employee has exhausted those other forms of leave.  Many employers, either by intention or accident, allow employees to defer the use of FMLA leave until other available leaves have been exhausted.  And although the FMLA leave allows the employer to require FMLA leave to run concurrently with other forms of leave, courts have held that in a unionized work environment, the employer must negotiate whether FMLA leave is to run concurrently or be deferred.  One New Jersey court has held that a public employer must negotiate even for the right to designate a leave as FMLA eligible if the employee does not want to utilize FMLA time.

However, the deferring of FMLA leave has been called into serious question by the Wage and Hour Division (WHD) of the U.S. Department of Labor.  On March 14, 2019, the WHD issued an opinion letter (FMLA2019-1-A) in which it declared that “an employer is prohibited from the delaying the designation of FMLA-qualifying leave as FMLA leave.”  Further, “when an employer determines that leave is for FMLA-qualifying reason, the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement.”  Accordingly, “the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer would delay the designation.” Reduced to its simplest terms, an employer may not allow FMLA leave to be deferred, regardless of the employer’s internal policies or the employee’s preference.

The WHD expressly rejected a Ninth Circuit decision that suggested that employees could use non-FMLA leave for an FMLA-qualifying reason and defer FMLA time for future use.  The WHD also expressly rescinded any of its prior opinions that suggested that deferral of FMLA leave was permissible.

The WHD opinion letter is an informal opinion interpreting the agency’s own regulations.  Under current federal law, courts are required to defer to an agency’s interpretation of its own regulations, even if those interpretations are announced informally.  This is a highly controversial point of federal administrative law that appears to be ripe for challenge; nonetheless, as of this date, it remains a principle of federal administrative law.  Therefore, the WHD opinion prohibiting the deferral of FMLA leave should be deemed to be in an authoritative statement of FMLA law.  Employers should be on notice that allowing employees to defer FMLA leave could expose them to enforcement action, and can be cited during USDOL audits as evidence of noncompliance with the FMLA.

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