Can Employees take paid leave, then FMLA leave? DOL says… Latest guidance for Payroll on tricky situation Consider this scenario: An employee who’s thinking medical leave under the Family and Medical Leave Act (FMLA) starts making paid-time-off requests to use up all his time before going on leave. This worker doesn’t want his certification for FMLA leave just yet, and he wants to know if he can wait until after he returns from his paid leave to obtain it. How should you handle this? A new opinion letter from the Dept. of Labor (DOL) offers some clarity about this tricky situation. Delaying right OK? In the letter, an employer asked the DOL if it was OK for an employer to delay designating medical leave as FMLA-eligible. Opinion Letter FMLA 2019-1-A also addressed whether companies have ability to offer workers FMLA leave for longer than 12 weeks. According to the DOL, once an employer hears an employee’s attempting to take leave for a condition that could qualify for FMLA leave, the employer must determine whether the employee is eligible for it. If so, the employer must notify the worker within five business days. The employer can’t waive his own right to take FMLA leave for the condition, and an employer can’t do so either. Under the law, employers are also banned from designating any leave beyond 12 weeks as FMLA leave. Getting payroll ready Employees can’t delay taking leave for and FMLA-qualifying reason to use up their paid time off first. However, workers are allowed to substitute their paid leave for unpaid FMLA leave. When this happens, Payroll must make sure its system allows them to tell the difference between both types of leave, as well as how much workers have left in general. This’ll ensure employees are paid accurately. More info: