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DOL Issues Opinion Letters on Extra FMLA Leave and Community Service as Working Time

    Client Alerts
  • April 01, 2019

The Department of Labor’s decision to again issue opinion letters in response to employer questions has resulted in some interesting agency positions. Two recent letters address unusual situations not accounted for in federal regulations.

In the first letter, DOL said that employers cannot delay designation of FMLA leave or grant employees more than the statutory 12-week maximum (or 26 weeks for military caregiver leave). In the first instance, the employer asked if it could delay FMLA designation until employees have used up accrued PTO. While nothing under the FMLA prevents employers from being more generous than the law requires, FMLA designation must begin as of the date the employer becomes aware of the need for leave, and actual FMLA leave cannot exceed the statutory maximum.

In the second letter, the employer asked whether time spent by non-exempt employees participating in an optional community service program was compensable working time under the FLSA. DOL said that this type of activity is not considered working time if truly voluntary, not directed by the employer, and if there are no guaranteed bonuses or other incentives for participation. Even though these efforts presumably benefit the employer’s public image to some extent, DOL considered them close enough to charitable endeavors to exclude this time from the definition of compensable working time.