In FMLA2019-1-A, the DOL advised that an employer cannot delay designating qualifying leave as FMLA, even if requested by the employee. In particular, the DOL was asked if it is permissible to permit employees to exhaust first any non-FMLA leave prior to designating otherwise qualifying leave as FMLA.
The DOL explained that an employer may not delay the designating qualifying leave as FMLA: “Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave…. Accordingly, the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.” With this proclamation, the DOL disagreed with the Ninth Circuit Court of Appeals, that held an employee could decline to use FMLA leave for an FMLA-qualifying reason in order to preserve the FMLA leave for future use.