Employers Can Decline Qualifying Leave Under the FMLA

Employer Benefits

While titled “Employer Responsibilities,” this regulation provides an employer with certain benefits, as well. For example, an employee is only entitled to 12 weeks of leave in a 12-month period, and categorizing leave as FMLA at the onset allows the clock to start running. Furthermore, an employer can also tell employees that they must take any accrued paid leave concurrent with FMLA leave, thus preventing employees from doubling up ' taking all paid leave, and then requesting FMLA leave subsequently. See 29 C.F.R. 825.300(c).

Escriba

A recent Ninth Circuit decision has cast some doubt on the obligation of an employer to designate known FMLA-qualifying leave pursuant to this regulation, however. In Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014), the court held that an employee could decline the designation of leave as FMLA leave, despite the fact that the employee was taking leave for an FMLA-qualifying reason, of which the employer was fully aware. In Escriba , the employee requested two weeks of leave to care for her ailing father, asking only for vacation time. The employer questioned her extensively on whether she wanted vacation leave or some other type of leave, such as FMLA leave. When the employee insisted on only vacation, the employer granted her two weeks of vacation and did not designate it as FMLA leave. It did inform her that if she needed additional time, she would have to send a doctor's note to human resources. When she failed to return to work after the two weeks without requesting any additional time, the employer terminated her for violation of its attendance policy.

The employee filed suit, alleging interference with her FMLA rights based on the employer's failure to designate the leave as FMLA leave and provide her the requisite FMLA notices. A jury held that she had waived her right to leave under the FMLA, and thus her termination did not interfere with her FMLA rights. The district court and the Ninth Circuit affirmed the verdict.

Other Court Decisions

The Ninth Circuit is not the only court to hold that an employee can deny leave be designated as FMLA leave, despite DOL regulations that state an employee cannot waive rights under the FMLA. See 29 C.F.R. ' 825.220(d). The Seventh Circuit in Ridings v. Riverside Medical Center, 537 F.3d 755, 769 n.3 (7th Cir. 2008), noted as dicta that an employee could waive FLA leave, when it found no FMLA interference in the termination of an employee for violation of the employer's attendance policy after the employee refused to submit the requisite paperwork requesting intermittent leave.

The Drawbacks of Waiving FMLA Rights

While the employer prevailed in both these cases against the individual employees, employers should not allow employees to waive their rights under the FMLA for several reasons. First, if an employee is allowed to waive the FMLA, then the requirement that an employee take FMLA leave concurrent with paid leave becomes optional. For example, an employee could exhaust all accrued paid time off for an FMLA qualifying reason, while waiving FMLA leave. The employee could then insist on taking 12 more weeks of FMLA leave. DOL regulations do not allow retroactive designation of FMLA leave in a manner that hurts an employee, so the request for FMLA leave after exhaustion of paid leave could expose an employer to some litigation risk. See 29 C.F.R. ' 825.301(d). If your company uses a fixed year to determine when FMLA leave resets, an employee could stack not only her paid time off and one year's worth of FMLA, but add on another 12 weeks of FMLA once the year has turned over.

Second, because many states have developed their own FMLA laws that run concurrent with the federal leave, failure to designate FMLA qualifying leave as such could open the door for employees to argue that they are entitled to additional state FMLA leave, which might be longer than 12 weeks, on top of other leave for which they have waived FMLA coverage. Connecticut's state leave law, for example, allows an employee 16 weeks of leave in a 24-month period. Conn. Gen. Stat. Ann. ' 31-51ll.

Further, an employee could seek additional state leave based on different definitions in state laws of who is a family member for the purposes of the leave. Compare 29 C.F.R. ' 825.122 (defining parent, spouse, son and daughter for FMLA) with, e.g., Haw. Rev. Stat. ' 398-1 (defining “parent” to include grandparents and grandparents-in-law). While state laws currently allow employers to run state and federal leave concurrently, a failure to “start the clock” on qualifying FMLA leave could expose an employer to litigation risk if it attempts to retroactively count leave towards any number of available leaves for an employee.

Third, courts have been fairly consistent that “forcing” employees to take FMLA leave is not interference with their rights under the law, unless it is clear that the leave was not FMLA-qualifying, and the employee is later denied further leave. See, e.g., Wysong v. Dow Chem. Co., 503 F.3d 441, 449 (6th Cir. 2007) (finding that if an employer forces an employee to take FMLA leave, “the employee's [interference] claim ripens only when and if the employee seeks FMLA leave at a later date, and such leave is not available because the employee was wrongfully forced to use FMLA leave in the past.” (emphasis added)). As a result, an employer can insist on designating leave as FMLA if it has reason to believe it qualifies, and then can retroactively remove the designation (to the benefit of the employee) if it turns out the leave was not qualifying. The bell can be “unrung,” but only if it benefits the employee.

Fourth, it is easier for employers to designate leave as FMLA leave without engaging in an employee-specific inquiry as to whether an employee wants to use FMLA. This type of interactive process (while required for employees with disabilities under the Americans with Disabilities Act) is not required under the FMLA (unless there is a dispute as to whether any leave is FMLA qualifying, see 29 C.F.R. ' 825.301(c)), and could be burdensome for larger employers with numerous employees. Further, since courts have held that the notice obligations of the FMLA are imperative once an employer learns of an employee's need to take leave, see, e.g., Reed v. Buckeye Fire Equip., 241 F. App'x 917, 925 n.5 (4th Cir. 2007), the safer course of action is to designate and notice the leave, rather than attempt to divine the intent of an employee.

Conclusion

While the individual employer in Escriba prevailed, following the principles of Escriba will not serve employers well in the future. If you have reason to believe an employee needs leave for an FMLA-qualifying reason, start the clock, designate the leave, and provide the employee with the requisite notice (including that such leave must run concurrent with paid leave). In the event that an employee disputes this decision, you can retroactively remove the designation, since it will be to the benefit of the employee. And regardless, the employee will only have a claim if you subsequently deny him or her FMLA leave.

Jen L. Cornell is an attorney with Nilan Johnson Lewis in Minneapolis. She can be reached at [email protected] or 612-305-7717.

Congress enacted the Family Medical Leave Act (FMLA) to allow employees to take necessary leave from their jobs for their own or a family member's serious health condition. Congress's intent was to help employees to “balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interest in preserving family integrity ' in a manner that accommodates the legitimate interests of employers.” 29 U.S.C. ' 2601.

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.

Employer Benefits

While titled “Employer Responsibilities,” this regulation provides an employer with certain benefits, as well. For example, an employee is only entitled to 12 weeks of leave in a 12-month period, and categorizing leave as FMLA at the onset allows the clock to start running. Furthermore, an employer can also tell employees that they must take any accrued paid leave concurrent with FMLA leave, thus preventing employees from doubling up ' taking all paid leave, and then requesting FMLA leave subsequently. See 29 C.F.R. 825.300(c).

Escriba

A recent Ninth Circuit decision has cast some doubt on the obligation of an employer to designate known FMLA-qualifying leave pursuant to this regulation, however. In Escriba v. Foster Poultry Farms, Inc. , 743 F.3d 1236 (9th Cir. 2014), the court held that an employee could decline the designation of leave as FMLA leave, despite the fact that the employee was taking leave for an FMLA-qualifying reason, of which the employer was fully aware. In Escriba , the employee requested two weeks of leave to care for her ailing father, asking only for vacation time. The employer questioned her extensively on whether she wanted vacation leave or some other type of leave, such as FMLA leave. When the employee insisted on only vacation, the employer granted her two weeks of vacation and did not designate it as FMLA leave. It did inform her that if she needed additional time, she would have to send a doctor's note to human resources. When she failed to return to work after the two weeks without requesting any additional time, the employer terminated her for violation of its attendance policy.

The employee filed suit, alleging interference with her FMLA rights based on the employer's failure to designate the leave as FMLA leave and provide her the requisite FMLA notices. A jury held that she had waived her right to leave under the FMLA, and thus her termination did not interfere with her FMLA rights. The district court and the Ninth Circuit affirmed the verdict.

Other Court Decisions

The Ninth Circuit is not the only court to hold that an employee can deny leave be designated as FMLA leave, despite DOL regulations that state an employee cannot waive rights under the FMLA. See 29 C.F.R. ' 825.220(d). The Seventh Circuit in Ridings v. Riverside Medical Center , 537 F.3d 755, 769 n.3 (7th Cir. 2008), noted as dicta that an employee could waive FLA leave, when it found no FMLA interference in the termination of an employee for violation of the employer's attendance policy after the employee refused to submit the requisite paperwork requesting intermittent leave.

The Drawbacks of Waiving FMLA Rights

While the employer prevailed in both these cases against the individual employees, employers should not allow employees to waive their rights under the FMLA for several reasons. First, if an employee is allowed to waive the FMLA, then the requirement that an employee take FMLA leave concurrent with paid leave becomes optional. For example, an employee could exhaust all accrued paid time off for an FMLA qualifying reason, while waiving FMLA leave. The employee could then insist on taking 12 more weeks of FMLA leave. DOL regulations do not allow retroactive designation of FMLA leave in a manner that hurts an employee, so the request for FMLA leave after exhaustion of paid leave could expose an employer to some litigation risk. See 29 C.F.R. ' 825.301(d). If your company uses a fixed year to determine when FMLA leave resets, an employee could stack not only her paid time off and one year's worth of FMLA, but add on another 12 weeks of FMLA once the year has turned over.

Second, because many states have developed their own FMLA laws that run concurrent with the federal leave, failure to designate FMLA qualifying leave as such could open the door for employees to argue that they are entitled to additional state FMLA leave, which might be longer than 12 weeks, on top of other leave for which they have waived FMLA coverage. Connecticut's state leave law, for example, allows an employee 16 weeks of leave in a 24-month period. Conn. Gen. Stat. Ann. ' 31-51ll.

Further, an employee could seek additional state leave based on different definitions in state laws of who is a family member for the purposes of the leave. Compare 29 C.F.R. ' 825.122 (defining parent, spouse, son and daughter for FMLA) with, e.g., Haw. Rev. Stat. ' 398-1 (defining “parent” to include grandparents and grandparents-in-law). While state laws currently allow employers to run state and federal leave concurrently, a failure to “start the clock” on qualifying FMLA leave could expose an employer to litigation risk if it attempts to retroactively count leave towards any number of available leaves for an employee.

Third, courts have been fairly consistent that “forcing” employees to take FMLA leave is not interference with their rights under the law, unless it is clear that the leave was not FMLA-qualifying, and the employee is later denied further leave. See, e.g., Wysong v. Dow Chem. Co. , 503 F.3d 441, 449 (6th Cir. 2007) (finding that if an employer forces an employee to take FMLA leave, “the employee's [interference] claim ripens only when and if the employee seeks FMLA leave at a later date, and such leave is not available because the employee was wrongfully forced to use FMLA leave in the past.” (emphasis added)). As a result, an employer can insist on designating leave as FMLA if it has reason to believe it qualifies, and then can retroactively remove the designation (to the benefit of the employee) if it turns out the leave was not qualifying. The bell can be “unrung,” but only if it benefits the employee.

Fourth, it is easier for employers to designate leave as FMLA leave without engaging in an employee-specific inquiry as to whether an employee wants to use FMLA. This type of interactive process (while required for employees with disabilities under the Americans with Disabilities Act) is not required under the FMLA (unless there is a dispute as to whether any leave is FMLA qualifying, see 29 C.F.R. ' 825.301(c)), and could be burdensome for larger employers with numerous employees. Further, since courts have held that the notice obligations of the FMLA are imperative once an employer learns of an employee's need to take leave, see, e.g., Reed v. Buckeye Fire Equip. , 241 F. App'x 917, 925 n.5 (4th Cir. 2007), the safer course of action is to designate and notice the leave, rather than attempt to divine the intent of an employee.

Conclusion

While the individual employer in Escriba prevailed, following the principles of Escriba will not serve employers well in the future. If you have reason to believe an employee needs leave for an FMLA-qualifying reason, start the clock, designate the leave, and provide the employee with the requisite notice (including that such leave must run concurrent with paid leave). In the event that an employee disputes this decision, you can retroactively remove the designation, since it will be to the benefit of the employee. And regardless, the employee will only have a claim if you subsequently deny him or her FMLA leave.

Jen L. Cornell is an attorney with Nilan Johnson Lewis in Minneapolis. She can be reached at [email protected] or 612-305-7717.