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Employers may need to revisit how their collective bargaining agreements (CBA) deal with leave requests from their unionized workforce.   A recent Department of Labor (DOL) opinion letter makes clear that the Family and Medical Leave Act (FMLA) doesn’t take a back seat to a CBA that requires employees to exhaust paid leave before utilizing FMLA.  Many employers in the interest of union peace, have negotiated terms in their collective bargaining contracts that require employees to exhaust all of their paid leave before utilizing FMLA.

In a September 10, 2019, letter, the DOL stated that paid leave for unionized workers under a CBA runs concurrently with the 12-week timeframe for FMLA.  In other words, an employer can’t rely on a union contract as a basis for delaying an employee’s FMLA leave until their CBA protected leave is exhausted.   In addition, employers must also allow unionized workers to continue accruing seniority when they utilize FMLA if the CBA requires such accrual when they take paid leave.

The DOL has been issuing a flurry of opinion letters and this recent decision is in line with a March 2019 letter holding that employees do not have the option of exhausting vacation time and other types of paid leave for leave reasons that would qualify for coverage under the FMLA.

What Employers Should Do Now
If you have a unionized workforce and you’ve been deferring to your union contract when it comes to administering leaves, you should revisit that practice and determine if those leaves qualify as FMLA leave.  If they do, this recent opinion letter makes clear that you should be designating those leaves accordingly regardless of what the language of the contract calls for.  In addition, employers may also have to take this new ruling into consideration in any upcoming contract negotiations in order to stay compliant.


Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.

James Venable

James Venable

James Venable, JD, SPHR, is the Vice President of Employment Law, Absence and Accommodation Compliance at ReedGroup, where he provides expertise in the areas of Absence Management Compliance and Employee Relations Counseling. Mr. Venable has more than 20 years of experience across senior roles in Legal, Human Resources, and Compliance from several Fortune 500 companies.

Mr. Venable joined ReedGroup in April 2018 after serving as Vice President of Human Resources, Employee Relations, Labor Relations, Compliance and Environmental Health and Safety for Comcast, where he was responsible for engagement and labor relations activities for the company’s West Division Business Unit.

He received his Juris Doctorate from the University of Connecticut School of Law, his BA’s in Political Science and English from the University of New Hampshire, and is licensed to practice law in Massachusetts.

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