HR Tip: Employees cannot decline FMLA leave even when a collective bargaining agreement says otherwise

In March 2019, the DOL issued an opinion letter that neither an employee nor an employer may decline FMLA leave when an eligible employee is absent for an FMLA-qualifying reason. The letter noted this is particularly true even if the employee wants the employer to delay the designation of FMLA leave.

Apparently, this created confusion in union environments where there is a collective bargaining agreement that allows the employee to use paid leave first and then use FMLA leave after paid leave is exhausted. In a new opinion letter , the DOL made it clear 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 bottom line is that in all cases once the employer has sufficient information to determine that an employee’s leave is covered by the FMLA, it must designate the leave as FMLA leave.

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