When should an employer designate an FMLA leave?

The Family Medical Leave Act (FMLA) gives employees up to twelve weeks of unpaid, job protected leave (26 weeks for military caregiver leave) every year for qualified reasons. Having security to take time from work to care for yourself or a loved one, without fear of job-loss, is important during those times of need. But, many people are not in a position to financially afford taking that time unpaid. Employees have tried to use PTO time first before requesting FMLA leave.


The Department of Labor (DOL) issued an opinion letter to clarify when the employees FMLA-qualified leave must start.

You can read the complete opinion letter - below I've captured the highlights:

  • The employer is prohibited from delaying when a leave is designated as FMLA
  • If the leave is qualified under the FMLA guidelines, neither the employee or the employer can decline FMLA protection for the leave.
  • Once the employer is aware that any requested leave falls under an FMLA qualifying reason the employer has to give written notice to the employee within 5 business days that they have designated the qualifying leave under FMLA.
  • This also means the employee cannot use PTO time to continue to receive pay while out on an FMLA leave.

It is interesting to note that this opinion letter from the DOL, conflicts with the Ninth Circuits ruling in Escriba v. Foster Poultry Farms from 2014. The court decided that the employee could use paid vacation for the FMLA-qualified leave. But, according to the DOL the employer cannot delay designating the FMLA leave.

Due to the complexities of administering an FMLA leave it is vital for all managers, supervisor and HR personnel to be trained on FMLA qualifying reasons and compliance with this regulation. 

Compliance Bulletin on FMLA



DOL webpage on compliance including model forms

Escriba v. Foster Poultry Farms Ninth Circuit decision

Department of Labor Opinion Letter