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The U.S. Department of Labor announced FMLA Designation May Not Be Delayed Due to a Collective Bargaining Agreement

Details of the Opinion

In a September 10, 2019 opinion letter, the DOL seemingly cleared up the issue of how an employer should administer FMLA leave in a union environment where a collective bargaining agreement specifically allows the employee to use paid leave first and then use FMLA leave at a later time, only after paid leave is exhausted.

Echoing its earlier opinion letter, the DOL declared that an employer still may not delay designating paid leave as FMLA leave even if the delay otherwise complies with a collective bargaining agreement.

The DOL’s latest opinion letter again is unequivocal: 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.

Next Steps

Employers in unionized work environments, which allow their employees to use accrued paid leave before utilizing FMLA should do the following:

  • Once the employer has enough information to determine that an employee’s leave is covered by the FMLA, it must designate the leave as FMLA leave even where a collective bargaining agreement states otherwise.
  • Continue to provide more generous leave policies, but ensure compliance with the FMLA by requiring additional paid or unpaid leave to follow or run concurrent with FMLA leave.

HR Works Can Help

HR Works offers Benefits Administration Service that are designed to make it less burdensome for employers to comply with federal and state leave laws. In addition, subscribers of the HR Works Virtual Helpline may contact a Compliance Specialist for questions related to FMLA, FMLA forms and leave tracking.

Employers who would like information on our Helpline Service or Benefits Administration Service may contact the Virtual Helpline at 585-381-8340 Opt. 1 or via email at for a referral to a HR Works Business Development team member.

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