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Family & Medical Leave Act (FMLA)March 11, 2020by Stanton LawFMLA Leave and Paid Time Off

by Amy Thomson.

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You’re an employer covered by the Family Medical Leave Act (“FMLA”) and have an FMLA-eligible employee who is having surgery (which you’ve determined is an FMLA-qualifying reason) and will be out for a period longer than the 12 weeks of unpaid FMLA leave to which she is entitled. Your employee has two weeks of paid time off (“PTO”) accrued and has requested that she be allowed to take her PTO first before using the 12 weeks of FMLA leave. You want to be helpful to your employee. Could you delay designating her leave as FMLA leave until she uses up the two weeks of PTO? Could you extend her FMLA leave beyond the 12 weeks required by the statute? The answer to both questions is: no.

In an opinion letter dated March 14, 2019 (FMLA 2019-1-A) (“Opinion Letter”), the U. S. Department of Labor (“DOL”) stated that employers cannot delay designating leave as FMLA-qualified leave by allowing employees to use paid leave first, nor can employers extend FMLA leave beyond the 12 weeks required under the statute.

Do Not Delay Designating FMLA-Qualifying Leave As FMLA Leave

Under the FMLA, covered employers must provide eligible employees up to 12 weeks of unpaid leave per year for qualifying medical or family reasons (up to 26 weeks per year for qualifying military caregiver leave).

Once an employer determines that an employee’s leave is FMLA-qualifying, the employer has five business days (absent extenuating circumstances) to both provide the employee with notice stating that the leave is FMLA-qualifying and advise the employee of the amount of leave that will be counted against his or her FMLA entitlement for the year. Failure to follow this notification requirement may constitute interference with, restraint of, or denial of an employee’s FMLA rights, which could be costly to the employer.

In the Opinion Letter, the DOL makes it clear that once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave and defer it for future use. Rather, when an employer determines that leave is FMLA-qualifying, it must count toward the eligible employee’s FMLA allotment for the year even if the employee is concurrently using paid leave. Therefore, in the case of your employee who is going to have the surgery, she cannot defer her use of FMLA leave. Even if she wants to take her PTO concurrently, you are obligated to designate the leave as FMLA and provide notice as required, or else you run the risk of the law finding that you have interfered with, restrained, or denied your employee her FMLA rights.

FMLA Designated Leave Is Limited to Only 12 (or 26) Weeks

The Opinion Letter also prohibits employers from designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. Employers can have leave policies that are more generous than that under the FMLA, but employers cannot expand the amount of leave to which an employee is entitled under the FMLA. In the case of your employee who needs the surgery, while you can allow her to take her two weeks of PTO, that two weeks of PTO will count toward her 12-week FMLA allotment and will not add to her FMLA entitlement.


Employers covered by the FMLA should update their leave policies and procedures to ensure that any leave that is FMLA-qualifying is counted toward the annual entitlement for eligible employees and that the required notice is provided.

For employers with employees in the 9th U.S. Circuit Court of Appeals (covering Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington), keep in mind that the Opinion Letter rejects the 9th Circuit’s holding in Escriba v. Foster Poultry Farms, Inc. that an employee may use non-FMLA leave for an FMLA-qualifying reason and preserve FMLA leave for future use. While the DOL’s Opinion Letter does not reverse the 9th Circuit’s decision, nor is it binding on future decisions, it does not preclude 9th Circuit courts from deferring to the DOL’s opinion in future cases. Due to this discrepancy, employers with employees in the aforementioned states and territories should speak to employment counsel when deciding on how best to address this issue in their policies.

Finally, although employers may not expand an eligible employee’s FMLA leave entitlement, employers may be required to provide more leave for employees under other laws, such as for a reasonable accommodation under the Americans with Disabilities Act.

Get answers to your FMLA Leave vs. Paid Time Off Questions

If you have questions about your employees’ FMLA-qualified leave as it relates to their paid time off, don’t hesitate to contact the Atlanta employment attorneys at Stanton Law. Since we stay abreast of the laws and recent legal opinions on this matter, we can help you navigate your risks and responsibilities if the situation comes up at your organization. Contact Stanton Law’s Atlanta employment lawyers online or at 404-531-2341 for the business law answers you need.