An opinion letter issued last week by the U.S. Department of Labor (DOL) makes clear that neither employers nor employees can decline to designate Family Medical Leave Act (FMLA)-qualifying leave as such. DOL also made clear in its letter that while employers are free to adopt leaves policies more generous than the FMLA, they cannot extend the FMLA's protections beyond 12 weeks (or 26 weeks for military caregiver leave). The effect of these interpretations can create a trap for the unwary employee.

When an employer determines an employee needs leave because of an FMLA-qualifying reason, that leave must count toward his or her FMLA allotment, even if the employee requests otherwise. This means that employees cannot, for example, opt to take employer-provided sick or vacation time first; FMLA leave would have to run concurrently. And even if the employer chooses to grant more leave than the 12 weeks required by law, the employer cannot extend the law’s job protection to those additional weeks.

Here’s an example: An employee is out on FMLA leave due to a surgery or some other serious health condition. Near the end of the 12-week FMLA period, the employee’s doctor indicates that just a couple more weeks of leave would be beneficial medically. The employee asks his or her employer and the leave extension is granted. Then at the end of the leave period (now 14 weeks because of the extension) the employer says things have change and the employee had to be replaced or his/her job was eliminated. Does the employee have protection under the FMLA in this scenario? Probably not.

Over the last few years, we have seen many employers building in FMLA extensions into their medical leave policies. The policies often provide for 15 weeks of “Medical Leave” rather than the 12 weeks mandated by law. And, while more leave seems like a good thing, it can be a trap. This is because only the first 12 weeks of the 15-week medical leave period has job protection enforceable under the FMLA. If the employee stays out beyond 12 weeks, their job is no longer protected by federal law, even though the employer’s own policy granted 15 weeks of medical leave.

Are extended “Medical Leave” policies an example of companies being generous or are they carefully laid traps for unwary employees? A little of both perhaps. But the bottom line is that employees must remember that no matter what anyone at the company tells you, you only have FMLA job protection for the 12 weeks mandated by the statute.