The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) recently issued a new opinion letter clarifying the DOL’s position on designating and taking leave under the Family and Medical Leave Act (FMLA). The opinion letter provides that “an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave”, even if the employee would prefer it be delayed, and must notify the employee of the FMLA status of the employee’s leave within five days of the employer obtaining enough information to make the determination. The DOL also found that an employer may not permit employees to expand their FMLA leave beyond the statutory 12-week entitlement (or 26-week entitlement, in the case of military caregiver leave).
An opinion letter is an official document authored by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter. In June 2017, U.S. Secretary of Labor Alexander Acosta announced that the DOL was resuming its longstanding practice of issuing opinion letters. The DOL had issued opinion letters for more than 70 years before ceasing the practice in 2010.
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