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DOL opinions on FMLA leave, volunteerism

03/21/2019

The U.S. Department of Labor has issued new opinion letters addressing FMLA leave and compensation for employees who spend time volunteering. According to the letters, published March 14:

  • Employers must run FMLA leave concurrently with any paid leave an employee takes for an FMLA-qualifying condition.
  • There is no need to pay employees for voluntarily participating in after-hours charitable activities at the employer’s suggestion.

Opinion letters indicate how the DOL is likely to interpret a law but do not carry the weight of law.

Run FMLA concurrently

Some employers let employees exhaust paid leave before starting the clock on their 12 weeks of unpaid FMLA leave. The opinion letter says the clock starts ticking right away.

It states that FMLA regulations require employers to designate FMLA leave within five business days of determining that the leave is FMLA-qualifying, regardless of the kind of leave taken. As a result, any leave taken subsequent to the employer’s designation of FMLA leave counts against the employee’s 12-week FMLA entitlement.

Employers are free to provide additional paid leave, but they may not increase the 12 weeks of protected FMLA leave the law dictates.

Note: The letter conflicts with a 9th Circuit decision. If you have employees in Western states, consult your attorney to determine if your FMLA practices comply.

Unpaid after-hours volunteerism

The second letter responded to an employer that encouraged employees to do volunteer charity work. It paid them for time spent volunteering during normal work hours. It wondered if it was required to pay them for time spent volunteering after hours or on weekends. The employer factored in volunteer hours when calculating a discretionary bonus.

The DOL said the employer did not have to pay for after-hours volunteering as long as it did not direct employees’ work or penalize them for refusing to participate in the program.

Online resource Read the FMLA leave opinion letter at tinyurl.com/concurrentFMLA. Read the volunteerism letter at tinyurl.com/flsavolunteer.