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Can you delay designating paid leave as FMLA leave?

The Department of Labor issued an opinion letter today regarding the FMLA and whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement (26 weeks for military caregiver leave). The answer is "NO" on both questions. An employer may not delay the designation of FMLA-qualifying leave, even if the employee would prefer that the employer delay the designation. Additionally, an employer may not designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.

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