The U.S. Department of Labor (DOL) Wage and Hour Division (WHD) recently issued a new opinion letter regarding leave under the Family and Medical Leave Act (FMLA).

FMLA 2019-3-A responds to an employee’s question about whether an employer may delay designating leave as FMLA leave if the delay complies with a collective bargaining agreement (CBA) and the employee prefers the designation be delayed. According to the letter, the employees are subject to CBAs that allow them to delay taking FMLA leave until after CBA-protected paid leave is exhausted.

After the issuance of WHD Opinion Letter FMLA 2019-1-A in March 2019, however, the employer changed its leave policy to require employees to take CBA-protected leave concurrently with FMLA leave.  The employee questioned the appropriateness of this policy when an employee prefers to delay designating FMLA leave and is concerned that designating the leave as FMLA leave may negatively impact the employee’s seniority status under the CBA and state rules.

In response, the letter reiterates WHD Opinion Letter FMLA 2019-1-A, which indicated that neither the employee nor the employer may decline or delay FMLA protection for FMLA-qualifying leave.  Additionally, if an employer provides for the accrual of seniority when employees utilize paid leave pursuant to a CBA and/or other policies, it must permit employees to accrue seniority when they are substituting FMLA leave for paid leave.

As indicated in a previous NAE article, the WHD Opinion Letter FMLA 2019-1-A acknowledged that it is at odds with a 2014 Ninth Circuit opinion, Escriba v. Foster Poultry Farms, Inc., in which the Court held that an employee may use non-FMLA leave for an FMLA-qualifying reason and decline to use FMLA leave in order to preserve FMLA leave for future use.  Because Nevada is part of the Ninth Circuit, Nevada employers should continue to follow Escriba, but it is always a good idea to proceed with caution and consult legal counsel when confronting this situation.