FMLA Policy Change Affects How Family Leave May Be Applied

FMLA Policy Change Affects How Family Leave May Be Applied

We read with interest a recent Second Wind member Forums discussion on paid time off (PTO) and maternity leave practices. This is an evolving employee policy area, since many smaller ad agencies fall well below the 50-employee threshold for Family Medical Leave Act (FMLA) requirements.

Many of our members allow employees to use their accrued paid time off before taking a family leave, and available leave is generally far shorter than that mandated under the FMLA for larger employers. Six to eight weeks seems to be the most generous leave policy, but some of that may be unpaid, and new parents may elect to begin resumption of work on a part-time basis within their leave. Other agencies use short- or long-term disability coverage—more on that in a moment…

2019 DOL Policy Letter Altered Family Leave Application

The 12 weeks family leave authorized by the FMLA was generally added by employers to other paid time off or leaves in their employee policies. But the Department of Labor (DOL) in March 2019 issued an opinion letter regarding the FMLA that contradicts widespread employer practices, anda 2015 Ninth Circuit court ruling.

Per the revised DOL policy, FMLA leave officially starts from the moment a person takes leaves—it overlays other leaves/PTO, it does not extend time off. So if a person requests an FMLA leave, and the employer grants that, the employee’s accrued paid leave happens first, and is deducted from the 12 weeks of total required family leave, reducing the amount of unpaid leave employers must allow.

Per the National Law Review, the policy change contradicts Escriba v. Foster Poultry Farms, a Ninth Circuit decision that found employees could first exhaust all other available PTO and leaves before requesting an FMLA leave. That decision affects employers in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. The NLR advises they follow Escriba, while employers in all other U.S. states, barring local or regional case law opposing it, should follow the newly stated DOL policy.

The Wage and Hours Division of the DOL investigates violations of the FMLA.

What this means for ad agency employee policies:

  • Agencies at or above the 50-employee threshold should review policy language and adjust it to ensure their FMLA policies align with the DOL’s, or if in the Ninth Circuit, with Escriba; or, is aligned with their own state’s family leave standards.
  • Alert employees to any changes. This is a human resources best practice. Explain the DOL revision, and assure employees you will work with them to help them in event they need to take a family leave.
  • If any employees are already considering family leaves, speak with them directly about the changes, and work out how they might adjust their plans so they get the time off they need with the least financial hardship to them and the agency.
  • Agencies that fall below the FMLA 50-employee threshold can set leaves based on what they feel the business can justify, and what they deem to be compassionate. (Many Second Wind female employees LOL’ed when a male commenter said his agency allowed a 2-4 weeks maternity leave—and a “flex” schedule for up to a week for new dads; a female agency owner noted many new moms are “working full-time” just caring for their newborn and pumping breast milk for when they have to return to work, so even working from home at 4 weeks seemed laughable to her.)

Using Short-term Disability for Family Leaves

A number of members stated that employees taking maternity leave at their agencies often opted to claim short-term disability*, since that pays a percentage of the employee’s salary for up to six weeks of leave, whereas an FMLA leave is unpaid. Some states have more generous laws offering short-term disability coverage for parental or pregnancy-related leaves, or even paid family leaves for parenting, caring for an ailing family member, etc. State laws supersede federal law for state residents when the state sets higher standards.

Also, be advised that the Pregnancy Discrimination Act of 1978 bars employers from discriminating against pregnant women in regards to hiring and firing, seniority, benefits and sick leave. E.g., if an employer gives paid time off for other forms of employee illness or disability, but denies or handles differently leave or altered duty for pregnant employees, they are violating the PDA. The PDA amended Title VII (addressing sex discrimination) of the Civil Rights Act. The Equal Employment Opportunity Commission investigates claims under the PDA. The PDA applies to businesses with at least 15 employees.

Make it a practice to review your employee policies manual at least annually to make sure you are current with changes and updates on employment law and HR best practices—and competitive with businesses competing for the same recruits and job candidates.

*It’s sad that U.S. expectant moms (and dads) have to claim a “disability” to receive family leave for the arrival of a child. Pregnancy is not a disability or illness (although it can lead to thosesurgeryor worse). Just leaving this here… 


See also: Compiling an Employee Policies Manual

Trust Us, We’ve from the U.S. Government

DOL (At Last) Issues Updated Overtime Eligibility Rules



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