U.S. DOL Issues New Opinion Letters on Voluntary Delay or Extension of FMLA Leave, Volunteer Working Hours

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All Employers with Employees Subject to FMLA and FLSA

EFFECTIVE

March 14, 2019

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On March 14, 2019, the United States Department of Labor Wage and Hour Division (WHD) issued two new opinion letters.  The first letter addresses whether or not employers may extend or delay designating paid leave as FMLA time off.  The second letter addresses whether an employee’s time participating in an optional volunteer program qualifies as hours worked under the Fair Labor Standards Act (FLSA).  These opinion letters are responses from the WHD to submitted queries, are primarily informative in nature, and are published by the WHD to clarify or interpret existing regulations.

FMLA209-1-A: Can an Employer Delay or Extend FMLA Leave Beyond the 12-Week Period?

Clarification was sought on whether or not employers may delay designating time off as FMLA (e.g., if an employee elects to utilize paid sick leave or vacation time before “using” FMLA time) or even provide additional FMLA leave beyond the 12 (or 26) week statutory entitlement, because there is an existing regulation that requires employers to “observe any employment benefit or program that provides greater family and medical leave rights to employees than the rights provided by the FMLA.”

The WHD’s opinion letter states that employers are prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an employer has sufficient information to determine that a reason for leave qualifies under FMLA, covered employers are typically required to provide notice of FMLA leave to the covered individual within five business days. The letter also states that “neither the employer nor the employee may decline FMLA protection.”  Notably, this position conflicts with the Ninth Circuit’s standing position 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.”

Employers are likewise prohibited from extending FMLA leave beyond the statutory entitlement.  However, employers are permitted to offer their own benefit program in addition to FMLA.

FLSA2019-2: Does an Employee’s Participation in a Volunteer Program Count as Hours Worked?

An employer who allows employees to participate in an optional community service program consisting of volunteer activities selected by either client sponsors or the employees, inquired if the employees’ time was considered hours worked under the FLSA. Generally, the WHD stated that individuals do not act as employees if they volunteer without contemplation or receipt of compensation, do so freely without direct or implied coercion or undue pressure from the employer, are not subject to ramifications if they don’t volunteer, are not guaranteed a bonus for volunteering, and the employer does not direct or control the volunteer work. The WHD noted that the FLSA is not intended to discourage volunteer activity, but rather to prevent coercion or manipulation of employees into providing labor through unpaid time.

Action Items

  1. Review the FMLA opinion letter here and the FLSA opinion letter here.  For a full index of all DOL opinion letters, visit the DOL guidance webpage.
  2. Have leave policies and practices reviewed for compliance.
  3. Have volunteer work reviewed by legal counsel for compliance.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

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