Editorial Note (October 1, 2018): The analysis in this article has been supplemented, as of this date, to provide additional information. For the supplemental article, please follow this link.
The Family and Medical Leave Act is designed to protect an eligible employee’s job while the employee takes leave for his or her own serious health condition, or to care for a spouse, parent, or child with a serious health condition. It would seem that a federal law that is designed to protect an employee’s job shouldn’t be all that complicated. Ah, grasshopper, it depends on the facts and how the parties are seeking to use the FMLA to their advantage.
Much of the confusion arises from a Ninth Circuit case that was decided in 2014, Escriba v. Foster Poultry Farms. The facts are complicated, and it took a jury to sort it all out. We know that a language barrier caused considerable confusion as to whether Ms. Escriba was asking for FMLA or vacation time to care for her ill father. The jury determined that Ms. Escriba did not ask to use FMLA, even though such an absence would have been an appropriate use of FMLA. Instead the jury decided that Ms. Escriba had used vacation time and was therefore properly terminated for violating the employer’s three-day no-call, no-show policy when she failed to return in a timely manner after caring for her ill father.
As with many FMLA cases, the employee often tries to argue that their FMLA rights were interfered with after they suffer an adverse employment action, such as getting terminated. So, the creative argument put forward by Ms. Escriba was that is “legally impossible” for her to say she didn’t want FMLA. She argued that FMLA was automatic when there was a covered event, and the employer should have placed her on FMLA, thereby protecting her job. Of course, savvy employers know that FMLA is not automatic. An employee must follow the notice rules, call-in rules, certification rules, and so on.
In rendering its decision in favor of the employer, the court issued this statement, which has caused some confusion: “An employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.” That is good news for employers, because it means if an employee, such as Ms. Escriba, doesn’t want to use FMLA, an employer can respect that decision, and the absences are handled under the employer’s attendance policy.
But what about the flip-side of that coin? Employers often want to designate time away from work as FMLA in order to fulfill their FMLA compliance obligations and to draw down the employee’s entitlement to future FMLA usage. Can an employer designate an employee’s absence as FMLA when the employee doesn’t want to invoke FMLA? Some commentators have read the Escriba decision and concluded that an employer can never place an employee on FMLA against their will, even if the employer is aware that an FMLA event has taken place. I strongly disagree with those commentators.
The FMLA clearly states that the employer has the responsibly to designate time off as FMLA. In addition, there are other provisions in the FMLA regulations providing discretion to the employer, such as paid leave substitute rules (“employer may require”) and intermittent use of FMLA for baby bonding, where it is the employer’s choice whether to allow it.
I have one caveat for employers: make sure you have enough independent information to determine the employee has a serious health condition prior to designating the time as FMLA. Otherwise, the employee may not be cooperative in providing medical certification, and then the employer will need to treat the absence as not FMLA-covered. In essence, the employee can get what he or she wants—preventing the FMLA clock from starting—by not cooperating. Furthermore, if the employer designates time as FMLA when it otherwise doesn’t qualify, then the employer could face an FMLA interference claim when the employee attempts to use FMLA in the future and finds it has been exhausted due to the employer’s unilateral designation.
I think all Escriba stands for is that an employee may decide to express intent to not take leave. It does not, in my opinion, stand for the proposition that an employer cannot designate qualifying FMLA leave as FMLA.