Employer Must Designate Paid Family Leave Under Labor Contract as FMLA Leave

September 12, 2019
Employer Must Designate Paid Family Leave Under Labor Contract as FMLA Leave

Although an employee is entitled to take paid family and medical leave under a collective bargaining agreement, the employer still must designate unpaid Family and Medical Leave Act (FMLA) protected time off as such, even if the employee prefers to use the paid time off first.

"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," the DOL said in a Sept. 10 opinion letter. The letter noted that the paid time off can run concurrently with unpaid FMLA leave.

The employee who requested the opinion letter was also concerned about losing seniority status while taking FMLA leave. The DOL said that whether an employee can accrue seniority (for the sake of gaining benefits based on length of employment) while on leave will depend on the employer's policies.

"An employee's entitlement to benefits other than group health benefits, such as the accrual of seniority, during a period of FMLA leave is determined by the employer's established policy for providing such benefits when the employee is on other forms of leave," the DOL said.

So if the employer doesn't allow seniority to accrue during an unpaid leave of absence, the same policy would apply to unpaid FMLA leave. However, if the employer lets workers accrue seniority during a paid leave of absence—but not an unpaid absence—then it must allow employees to accrue seniority during the time that FMLA leave runs concurrently with available paid time off.

We've rounded up articles and resources from SHRM Online on family and medical leave compliance.

Policy Changed to Comply with Prior Opinion Letter

The employee who requested the opinion letter said that the employer had recently updated its leave policy to align with a March opinion letter on the topic. Although some employers have policies that either require or allow employees to use accrued paid time off to replace wages while taking unpaid FMLA leave, the DOL clarified in the March letter that paid leave must run concurrently with FMLA leave. Significantly, under the March guidance, employees cannot save their FMLA leave if they need to take leave now for an FMLA-qualifying reason, said Michele Haydel Gehrke, an attorney with Reed Smith in San Francisco. In the most recent letter, the DOL confirmed that FMLA-qualifying leave must still be designated as such when a collective bargaining agreement provides for paid family and medical leave.

(SHRM Online)

What Managers Need to Know About the FMLA

Eligible employees can use FMLA leave to bond with a child after birth, adoption, or foster-care placement or to address the employee's own or a covered relative's serious health condition. The employee also must have worked for 1,250 hours for the previous 12 months for a covered employer at a location with 50 or more employees within a 75-mile radius. The role that managers play in FMLA compliance doesn't have to be complex, so why do managers often fail to alert HR to employees' FMLA leave requests and intermittent leave misuse? Failure to understand their role in FMLA compliance efforts may be why. HR can get them up to speed. 

(SHRM Online)

[SHRM members-only toolkit: Managing Family and Medical Leave]

5 Quick Tips for FMLA Compliance

HR professionals who manage family and medical leave know that leave laws are complex, which makes compliance difficult. So having sound policies and practices is critical. "Whatever your policy is, make sure you're consistent with it," said Eric B. Meyer, an attorney with FisherBroyles in Philadelphia. Here are five tips he suggests for managing time off under the FMLA.

(SHRM Online)

FMLA Mistakes Can Be Costly for Employers

A recent decision from the highest court in Massachusetts underscores the risk if employers take employment actions based on outrage rather than reason—particularly when it comes to decisions about family and medical leaves of absence. In this case, an employee sued his former employer after he was fired for taking a vacation to Mexico while he was on a medical leave of absence, and the Massachusetts Supreme Judicial Court upheld a $1.3 million damage award. A jury had found the company liable for retaliatory termination in violation of the FMLA, the Americans with Disabilities Act, and a state law discrimination statute.

(SHRM Online)


Visit SHRM's resource page on the Family and Medical Leave Act.



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