Employees Can Decline Qualifying Leave Under the FMLA

The balance struck was that certain employees (those who have worked for 12 months and at least 1,250 hours) of certain employers (those with 50 or more employees) could take up to 12 weeks of unpaid leave in a year to care for either themselves or a family member with a serious medical condition. The year can be calculated on a rolling basis, or a fixed year, such as a calendar year, the fiscal year, or an employee's anniversary date. 29 C.F.R. ' 825.200(b).

As “remedial legislation,” courts often rule on the employee side of the scale when interpreting the law's provisions. See, e.g., Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 735 (2003) (finding a history of gender-based discrimination in the administration of leave benefits justified the enactment of the FMLA as a prophylactic law). The Department of Labor (DOL) promulgated guidelines to assist employers in the implementation of the FMLA. Similar to courts' employee-friendly interpretations, the DOL placed certain burdens on employers. One of those burdens was that an employer has the responsibility to designate leave as FMLA leave and provide employees with notice of their rights under the law, once it has “acquired knowledge that the leave is being taken for a FMLA qualifying reason.” 29 C.F.R. ' 825.301. In other words, it is the employer's responsibility to know that leave was protected under the FMLA, not an employee's obligation to request the protection of the law.