We are frequently presented with the question of whether an employee can decline FMLA leave in favor of using benefit time for circumstances which would otherwise qualify as FMLA leave. The scenario often goes like this: An employee is having knee surgery and will need to be off from work for about eight weeks. Their spouse is expecting to give birth a few months after that. The employee, who has diligently accrued quite a bit of sick leave over the years, wishes to use sick leave only for the knee surgery so that they can save all of their FMLA leave for the birth of the baby. Although the knee surgery is FMLA qualifying, they notify their employer that they wish to decline FMLA. The employee obviously wants to “save” their FMLA leave for the birth of the baby. The employer is confused because, after all, FMLA is an employee protection and how does an employer force a protection on an employee.
A recent Department of Labor opinion letter answered the question of whether an employer or employee can delay the start of FMLA leave once notification of an FMLA qualifying event is made with a succinct “no.” Citing 29 CFR 825.220(d), the DOL reiterated that neither the employee nor the employer can delay designating leave as FMLA protected leave once the employer is aware that the employee has an FMLA qualifying event. So, as much as one might sympathize with the employee who wants to take 12 weeks of job protected leave for the birth of their baby, if they need knee surgery just prior to the birth, the time off for knee surgery is going to use up some of that FMLA protected leave.
Additionally, the DOL opinion letter, in stating that FMLA leave must be designated as soon as the employer is aware of a qualifying event, clarifies how additional, non-FMLA leave, is used in relation to FMLA leave. So, if the employer in our example, offers 16 weeks of parental leave upon the birth of a baby, the employee, who has four weeks of FMLA leave left after the knee surgery, would use that time up first upon the birth of the baby, and then use the additional parental leave of 12 weeks if the policy provides that it runs concurrently with FMLA leave.
Employers should take note that neither they nor the employee, can delay designation of FMLA leave once they know that the employee qualifies for it.