03.29.2019
Article

DOL Opinion Letter Clarifies Designation of FMLA Leave Questions

By Christine Nentwig

As many of you likely recall, following a Ninth Circuit decision in 2014 (Escriba v. Foster Poultry Farms, Inc.), there was a question regarding whether an employee could choose to decline designation of a leave as FMLA, even if the leave was otherwise clearly qualifying.  In that case, the court held that an employee could decline to use FMLA leave for qualifying time off.  While in that case the holding was a “win” for the employer (since the case centered on the employee’s claim that even if she asked the employer not to designate the leave as FMLA they were not permitted to do so), the ruling put employers in a difficult position.  Employers faced with an employee requesting that leave not be designated as FMLA could either take a risk and designate the leave as FMLA leave against an employees’ wishes, or allow the employee to pick and choose when to use FMLA time, even when the condition qualified, and run the risk that the employee later reconsidered and claimed interference with their FMLA rights or chose to use the time for another qualifying leave.

This uncertainty was resolved in a Department of Labor (DOL) Opinion Letter issued on March 14, 2019 (FMLA2019-1-A).  It the letter, the DOL flatly rejected the Ninth Circuit’s holding allowing employees to affirmatively decline to use FMLA leave.  The DOL made clear that employers must designate leave as FMLA leave, if it qualifies, even if the employee uses paid time and/or requests (or even insists) otherwise.  The DOL also confirmed that once an employer determines that the employee’s leave qualifies under the FMLA, neither the employer nor the employee has a choice in the matter – the leave must be designated as FMLA and counted toward the employee’s 12 (or 26) week entitlement.

The DOL further provided that even in situations where the employee uses paid time to cover otherwise unpaid FMLA time off, whether by choice or because the employer requires the use of such time, that paid time will run concurrently with the FMLA leave and cannot extend the employee’s statutorily protected leave beyond the 12 (or 26) week entitlement.

While many employers may have viewed the Escriba case as an outlier, it succeeded in muddying the waters surrounding the question of how to handle employees who preferred not to use FMLA for qualifying time off, and exposed employers to the risk of claims of interference from employees who declined FMLA but later claimed a leave should have been protected.  Given the complexity of the FMLA regulations and the confusion caused by the Escriba case, this guidance provides welcome clarity for employers, both in terms of ensuring FMLA leave is designated and used for qualifying absences, and providing a firm mandate and a solid basis for doing so.

If you have questions regarding this or any other employment-related topic, please contact Christine or any of the attorneys in CGA’s Employment Law Group.

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