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To Count or Not To Count, That is the FMLA Question

To Count or Not To Count, That is the FMLA Question Background Decorative Image

Your employee tells you that he would like to use his four weeks of annual vacation so that he can take care of his very ill mother who lives in another state. “No problem,” you tell him, “And if you need more time, let me know.”

A month later, the same employee calls you and tells you that his mom is still very sick and that he will be out another 12 weeks on unpaid FMLA leave. While you were happy to accommodate him initially, you really cannot afford for this employee to be out for a total of four months. When you explain to him that he is only entitled to eight additional weeks of leave, he responds that you cannot count the first four weeks as FMLA leave because he never intended to exercise his rights under the FMLA while he was on vacation. Is he correct?

At least according to a recent Ninth Circuit decision, this employee would have been justified in taking an additional 12 weeks beyond the four weeks of vacation that he already used, even though his vacation has been used for FMLA-qualifying reasons.

In a March 14, 2014 opinion letter, the Wage and Hour Division explicitly disagreed with the Ninth Circuit’s decision and wrote that employers cannot permit employees to exhaust paid sick or vacation leave prior to designating leave as FMLA-leave if the leave is, in fact, FMLA-qualifying.

While this opinion letter should protect employers from employees seeking to expand their allowable leaves, employers should remember that they are ultimately responsible for designating leave as FMLA-qualifying and giving written notice to employees within five days after having enough information to determine whether the leave is being taken for an FMLA-qualifying reason. If an employee informs you that they will be taking leave (paid or otherwise) to deal with a situation that qualifies under the FMLA, make sure that the leave is properly designated as such and that the employee is made aware of it. Otherwise, you may still end up giving the employee more leave than you intended.

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.