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The U.S. Department of Labor (DOL) recently released two Wage and Hour opinion letters interpreting the Family and Medical Leave Act (FMLA). Opinion letters are issued by the DOL Wage and Hour Division in response to questions received about the application of the laws, including the FMLA. While DOL opinion letters do not have the effect of law, courts will often defer to the agency's opinion letters if the law or regulations are unclear. Because of this potential court deference, it is helpful for employers to know the DOL position on the particular factual circumstances it has been presented. One recently released opinion letter concerned substitution of sick leave.
Enhanced Medical Documentation
In an Opinion Letter dated October 4, 2004, the DOL considered whether an employer may require an employee to submit medical information additional to that required for FMLA coverage in order to qualify for the employer’s paid sick leave. Under the particular employer’s sick leave plan, “proof of illness” could be requested from all employees, including those with FMLA qualifying absences who had previously submitted medical certifications. “Proof of illness” could be a doctor’s note or other medical documentation.
Employees who took FMLA qualifying leave for their own serious health conditions but who failed to provide the proof of illness when requested, could still take the unpaid FMLA protected leave, but could substitute paid sick leave for that FMLA leave.
In responding to the employer’s question, the DOL considered the federal FMLA regulation which states that “an employer is not required to allow substitution of paid sick or medical leave for unpaid FMLA leave in any situation where the employer’s uniform policy would not normally allow such paid leave.” 29 C.F.R. 825.207(c) The DOL considered that this provision supported the employer setting its separate requirements for sick leave qualification. The DOL found the policy acceptable so long as: (1) the program was uniformly applied to all absences regardless of whether they were FMLA qualifying and (2) employees would be able to substitute accrued vacation or personal leave if they choose not to provide the additional proof of illness required to receive paid sick leave.
Conversely, Wisconsin FMLA requires employers to allow an employee to substitute any alternate paid leave of the employee’s choosing for unpaid FMLA time. Alternative leave might include paid sick pay. However, an employee who has exhausted state FMLA leave can be required to meet a more restrictive standard for documentation in order to substitute paid leave for federal FMLA leave.
If you have questions regarding FMLA or any other employment law issues, please contact our educational services department at (414)423-1330.
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