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Many Michigan employers of all sizes and stripes offer some form of paid leave, sick leave or paid time off as a fringe benefit. And, for large employers with 50+ employees, it would not be uncommon to permit additional time off even beyond the unpaid leave entitlements of the Family and Medical Leave Act (“FMLA”).

Some state or local laws may even require paid leave beyond FMLA entitlements. Seeking to maximize qualifying time away from work, employees may even ask to take paid leave before commencing the allotted 12 weeks of unpaid FMLA leave [ 26 weeks, in the case of military caregivers ]. For morale purposes in a tight labor market, some employers may even independently also permit various other employee favorable arrangements.

But – Not Anymore. By Opinion Letter, dated March 14, 2019, the United States Department of Labor (USDOL) now prohibits this approach.

The USDOL’s Opinion Letter requires the FMLA entitlement to commence from the earliest possible date, irrespective of a covered employer’s paid leave policy or applicable policies, or the employee’s preferred leave sequencing. Since federal law preempts state laws on such subjects, the federal regulations rule supreme.

USDOL now takes the position that an employer “may not designate more than 12 weeks of leave as FMLA leave” [military caregivers – 26 weeks]. It is worthy to note that the USDOL’s most recent Opinion Letter is a departure from its former Opinion Letter No. 49 [1994], which allowed employers to “extend” FMLA benefits by delaying the start of the FMLA leave period until after employees exhausted other paid leave benefits.

With appropriate notice in written policies and in the required FMLA Rights and Responsibilities Notice, employers may still continue to require employees to take paid leave concurrently with unpaid FMLA leave.

Alternatively, employers may permit employees to elect to take other employer provided paid leave concurrently with FMLA leave; or, to take FMLA leave as unpaid and save paid leave for later use.

Now, according to the USDOL, in every circumstance, the first 12 weeks of FMLA qualifying leave in the applicable calendar year [military – 26] must be designated as FMLA leave.

In relation to Michigan’s newly adopted PMLA, and the many procedural requirements of the FMLA, a trap is now set for the ill-informed. Guidance from experienced labor counsel should help to avoid interference with employees’ companion FMLA/PMLA rights, while at the same time attempting to minimize potential risks of misuse or ‘gaming a system’ designed to build moral and assure staff retention.

Note: as an aside, relative to the implementation date of Michigan’s new MPLA, following the applicable Parliamentary Rules, the implementation date is March 29th, 2019. If one follows Michigan’s Constitution respecting the 91 day subject – the implementation date is April 1st, 2019. The newly required MPLA posters now being circulated by MIDOL, of course, reflects the earlier date.