By now, most employers know that they have to provide leave under the Family and Medical Leave Act to qualifying employees if that employer has 50 or more employees within a 75-mile radius. Occasionally, one of my clients will encounter an employee who doesn’t want FMLA leave. In most cases, the employee wants to refuse FMLA leave initially, use-up all of his/her paid leave first, and then use 12-weeks of unpaid FMLA leave.
The Ninth Circuit Court of Appeals (which issues opinions for many states on the West Coast) allows employees to expressly decline FMLA coverage. See Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014). The Escriba opinion is not binding on employers in Alabama. Only the Eleventh Circuit Court of Appeals can give us definitive guidance. But, the Eleventh Circuit has not issued an opinion on this issue.
In my opinion, the FMLA’s implementing regulations provide an employer with very little choice on whether employees can refuse FMLA leave. If the employer possesses information demonstrating that an employee suffers from a “serious health condition,” then the employer must designate the leave as FMLA leave — regardless of what the employee wants. Indeed, the regulations state: “Once the employer has acquired knowledge that the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee [that the leave is designated as FMLA leave.]” 29 C.F.R. § 825.301(a). Here is a good blog post discussing the pros and cons of designating leave as FMLA leave over an employee’s objection: Forcing FMLA.
Last week, the United States Department of Labor’s Wage and Hour Division weighed-in on this issue. In Opinion Letter FMLA2019-1-A, the Wage and Hour Division expressly found: “Once an eligible employee communicates a need to take leave for an FMLA qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.” (DOL Opinion FMLA 2019-1-A at 2.) Thus, “the employer may not delay designating leave as FMLA-qualifying leave, even if the employee would prefer that the employer delay the designation.” (Id.) The DOL’s opinion also expressly disagrees with the Ninth Circuit’s holding in Escriba.
The issue of declining FMLA leave or forcing FMLA leave is a complex one. In fact, the Eleventh Circuit has left open the possibility that an employee might be able to sue for “involuntary leave.” While the Court has not issued a specific opinion on that issue, it has recognized that an employee might be able to sue if he/she is forced to use 12 weeks of FMLA leave and then does not have leave available for a later qualifying condition. As a result, Alabama employers should proceed cautiously before forcing an employee to take FMLA leave.