Today’s Q&A covers a common question surrounding FMLA designation. At times employers choose to deliver generous leave benefits that extend beyond those mandated by FMLA (i.e. beyond 12 weeks). But does that mean that the protections of FMLA are extended as well?

Question: Can an Employer Delay Designating FMLA Leave to Extend the Employee’s Benefit?

Answer: No. Once an employer identifies that an employee’s leave is for an FMLA qualifying event, that employer must begin charging the employee’s FMLA leave balance.

Even in the circumstances when an employee wants to use another paid fringe benefit first, the employer cannot delay FMLA leave until after the employee exhausts his or her paid fringe leave.

The U.S. Department of Labor (DOL) released an opinion letter on March 14 2019, stating “The employer is responsible in all circumstances for designating leave as FMLA-qualifying and giving notice of the designation to the employee.”

An employee may certainly elect to use a paid fringe benefit to during FMLA, but the FMLA entitlement will run parallel to the use of the paid fringe. For example, if an employee elected to take two weeks of paid time off at the beginning of their FMLA qualifying event, the employer cannot delay charging the employee’s FMLA entitlement for two weeks.

The DOL states, “Nothing in the FMLA prevents employers from adopting leave policies more generous than those required by the FMLA. However, an employer may not designate more than 12 weeks of leave—or more than 26 weeks of military caregiver leave—as FMLA-protected.”

Furthermore, once an FMLA-eligible employee experiences an FMLA-qualifying event, neither the employer nor the employee may decline the protection of FMLA leave.

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