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Mar 18 2019

DOL Reiterates That Employees Can't Decline Federal FMLA

When addressing employee's medical issues, employers frequently ask if the employer must designate FMLA qualifying leave as FMLA leave or conversely, whether an employee can decline FMLA leave. The questions are asked despite the FMLA clearly stating that "once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave]." 29 C.F.R. 825.301(a). In Opinion Letter FMLA2019-1A, the Department of Labor ("DOL") expounded upon the requirement that an employer must designate qualifying leave as federal FMLA leave. The agency succinctly and directly answered the designation questions, stating:

Once the employer has enough information to make this determination (that leave is for an FMLA-qualifying reason), the employer must, absent extenuating circumstances, provide notice of the designation within five business days. 29 C.F.R. § 825.300(d) (1). Accordingly, the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation. (Emphasis added.)

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