Can an Employee Decline FMLA Leave Even though the Absence is Covered by the FMLA? According to the DOL, the Answer is an Emphatic “NO.”

Every one of you employs at least one of these employees — you know, the one who:

• requests medical leave because of, let’s say, his uromysitisis poisoning(clearly, an FMLA-qualifying condition); but
• wants to use his accrued paid leave instead of tapping into FMLA?

He might even get indignant, insisting that the law allows him to choose either FMLA leave or ordinary sick leave to cover an absence clearly covered by the FMLA.

How do you respond to this employee?

I have long thought the answer to be a rather simple one: when an absence qualifies as FMLA leave, the employer should designate the leave as FMLA leave.  After all, the regulations tell us that, “once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave].” 29 C.F.R. 825.301(a)  There is nothing in this regulation to suggest that the employee can influence this process. To the contrary, the regulation states that the employer designates once it knows the absence is for an FMLA-qualifying reason.

But I’ve not had much to point to beyond the regulations to support my position.

That changed yesterday. Never thought I’d say this, but the DOL got my back!

In a straightforward, practical opinion letter, the U.S. Department of Labor addressed yesterday whether an employee could delay FMLA leave and instead utilize accrued paid leave when the absence clearly would qualify as FMLA leave. The DOL’s answer was swift and unequivocal:

An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave.  Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. (My emphasis)

If that wasn’t clear enough, the DOL doubled down just a few sentences later:

The employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation . . . [If] an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

Insights for Employers

How does this opinion letter impact employers?

1. It brings clarity. Those of us who operate in the leave law world may greet this opinion letter with a yawn. However, the employer community has long considered this issue to be a gray area in FMLA administration.  Now they have an answer: an employee doesn’t get to choose whether or not an absence is covered by the FMLA. Now, when any absence qualifies as FMLA leave, the DOL has made clear that it must be designated as FMLA leave.
2.  It’s Particularly Helpful to Unionized Employers and Public Sector Employers. This opinion letter may end up impacting these employers the most. It’s not uncommon for collective bargaining provisions or public sector personnel policies to allow employees first to use paid leave, followed by FMLA leave. This opinion letter gives these employers the leverage they need to negotiate CBA provisions and establish policies designating FMLA leave at the earliest opportunity whenever FMLA applies.  Thank you, DOL!
3. Despite the Clarity for the Rest of Us, the Opinion Letter Creates Quite a Trick Bag for Employers in the 9th Circuit.  Let me explain. Several years ago, in Escriba v. Foster Poultry Farms, the 9th Circuit Court of Appeals decided that an employee actually can decline FMLA leave and use paid leave instead, even though the underlying reason for leave would have been FMLA-qualifying leave. Since this decision was issued in 2014, employers in the 9th Circuit have been left scratching their collective heads about whether and how they should designate FMLA leave when an employee declines it.  In issuing this opinion letter, however, the DOL pulls no pushes in noting its disagreement with the Escriba decision (see footnote 3 of the opinion letter). Since the decision in 2014, DOL leadership has publicly questioned whether the Escriba decision should be followed. Yesterday, it voiced that displeasure in writing, noting that it “disagreed” with the 9th Circuit’s take that an employee is able to decline FMLA leave. I will continue to counsel my 9th Circuit employer clients the same way I always have: designate the leave under the FMLA!
4. Employers Can Still Be Generous with Their Paid and Unpaid Leave Programs.  This opinion letter doesn’t mean you need to be stingy with the paid and unpaid leave programs you provide employees. In fact, the regulations explicitly tell us, “Nothing in FMLA supersedes any provision of State or local law that provides greater family or medical leave rights than those provided by FMLA.” 29 CFR 825.701(a) So, there is nothing stopping you from providing additional leave when FMLA leave ends. As this opinion letter points out, however, you simply can’t designate the additional leave as FMLA leave once an employee has exhausted 12 weeks of FMLA leave.

Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.