The Camp Lejeune Justice Act of 2022. Are you eligible for compensation?
BY: Sommers Schwartz | IN: Employment Law
In a recently released opinion letter, the U.S. Department of Labor (DOL) has said that employers may not delay the designation of an employee’s Family and Medical Leave Act (FMLA) qualifying leave. It also stated that employees may not extend their FMLA leave beyond their annual entitlement.
The FMLA allows workers to take up to 12 weeks (26 weeks for leave related to the care of a covered military servicemember) of unpaid leave per year for certain reasons, such as personal illness or care of a family member with a medical condition, with job and benefits protection. It is common for an employee to take paid time off or sick days when faced with a FMLA-covered absence from work, and some employers require it. However, it is the employer’s responsibility to designate FMLA-covered leave as such and to provide a written designation notice to the employee within five business days of determining that the leave is being taken for a FMLA-covered reason.
As soon as an employee communicates their need to take a covered leave neither they nor their employer may decline the FMLA protections for that period of leave. If the employee uses accrued paid time off after announcing their leave, it does not extend their FMLA entitlement period beyond their 12 weeks per year. The paid leave and the unpaid FMLA leave would run concurrently.
The opinion letter came in response to an employer who asked for clear guidance on the subject. This is a common practice and there is confusion when an employer-provided leave benefit exists along with FMLA leave protections. Many employers delay designation of FMLA-covered leave because there is a provision that dictates that the most beneficial employee program or protection is the one that prevails; however, this is not correct. Even if an employee takes advantage of an employer-provided leave benefit, their 12 (or 26) weeks of FMLA leave remain the same and are in effect immediately after the designation is made.
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