Forcing FMLA: Evaluating Different Interpretations for the Ninth Circuit

This article supplements our analysis from a 2017 article and discusses the still hotly contested issue of whether employers may force an employee to take leave under the Family and Medical Leave Act (FMLA) in the states and districts covered by the U.S. Court of Appeals for the Ninth Circuit.

Employers Council attorneys and human resources professionals have fielded an ever-increasing number of questions associated with this practice of forcible designation due to conflicting guidance obtained from other sources. At the heart of the question is the 2014 decision in Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014), wherein the federal appeals court that authored the decision used language that indicated to some that forcible designation of FMLA leave was impermissible. The language in question stated that an employee may “affirmatively decline” FMLA leave. The true meaning of these words has caused continuing debate for employment law and human resources practitioners.

As a preliminary matter, the states and districts for which this decision is considered “mandatory” or “authoritative” rather than merely “persuasive” include Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, the District of Guam, and the District of the Northern Mariana Islands. Guidance in other states and districts is different and not the subject of this article.

For those seeking a “yes” or “no” answer to the question of whether Escriba prohibits forcible designation of FMLA leave, be forewarned that it is not forthcoming in this article. Rather, the author seeks to evaluate the different stances on Escriba, four years after the decision was issued, so as to provide employers with as much information as possible to conduct their risk assessments. In order to do so, the “yes” and “no” “camps” will be evaluated in turn.

“Yes, Escriba Prohibits Forcible FMLA Designation”

Some practitioners read Escriba‘s language relating to the “right” of an employee to “affirmatively decline” FMLA leave as disallowing employers from counting time off against an employee’s 12- or 26-week workweek entitlement when the employee elects not to designate such time off as covered FMLA leave. This result would mean that an employee will be able to save his or her FMLA leave entitlement for a future event, such as child bonding, even when the issue that forces his or her absence technically qualifies for leave under the FMLA. Following this interpretation, employers who wish to manage their employees’ absences would be denied the opportunity to effectively do so, as employees could essentially use accrued vacation and sick leave benefits for their absence now, and then take another 12 workweeks off later while exercising their FMLA rights. As you may imagine, this could result in an extensive period of time off.

Some have also considered the possibility of an employee utilizing the Americans with Disabilities Act (ADA) to obtain time off as a reasonable accommodation, while refusing to have such time off designated as FMLA, and then obtaining even more time off under the FMLA at a later date. The reality is, as many have pointed out, that the facts of the Escriba case are different from this scenario. In Escriba, the plaintiff sought time off to care for a seriously ill family member, rather than herself. As such, the ADA would not have applied and the plaintiff could not have sought reasonable accommodation for her family member’s disability. Nevertheless, some sources read Escriba as suggesting that an employee could reject FMLA regardless of the underlying qualifying event that triggers the need for time off; i.e., irrespective of whether time off is for the employee’s serious health condition or to care for a family member with a serious health condition.

“No, Escriba Does Not, Generally, Prohibit Employers from Forcibly Designating Leave as FMLA Covered”

Then there’s the other side. As noted above, the facts of Escriba involve a plaintiff who was herself able to work but who sought time off to care for a seriously ill family member. Further, she elected to use vacation time instead of FMLA, and her employer did not forcibly designate the time off as FMLA leave. Instead, it terminated her when she returned to work. Only then did the plaintiff invoke the FMLA. And the court’s language regarding the employee affirmatively declining FMLA leave arises in that context; i.e., the plaintiff chose not to exercise her protections under the FMLA, thus she was voluntarily unprotected and loses her claim. In other words, it was not the employer’s responsibility to designate her leave as FMLA protected over her objections. But, as the argument goes, the employer could have done so had it chosen to do so. It is indisputable that Escriba does not involve a fact pattern wherein an employer forcibly designated time off as FMLA covered.

Some employment law and human resources practitioners advise against forcible designation of FMLA leave under these circumstances (i.e., when the employee is able to work but needs time off to care for someone else), regardless of the location of the worksite; i.e., irrespective of whether the employee is located in a state or district covered by the Ninth Circuit. Consult with legal counsel if you are confronted with this particular dilemma to dig further into the legal requirements applicable to your jurisdiction.

Last but not least, some employment law and human resources practitioners cite the opposite proposition from the FMLA’s own regulations, namely that an employer has a duty or responsibility to designate FMLA leave where appropriate, rather than just a right to do so. The most commonly cited regulation standing for this proposition is 29 CFR 825.208(a).

Enforcement Guidance from Labor Agencies

Anecdotally speaking, some Employers Council members have noted, without specifics and typically (but not always) during FMLA-related classes, that they were cited for forcible designation of FMLA leave, and wished to know whether Employers Council attorneys or human resources professionals thought this was the correct result. The author does not have any direct knowledge of specific circumstances that have led to such a citation. The facts applicable to such citations could very well have included an important legalistic nuance that made the difference. Further, it is possible that any such citations were for violations of state FMLA-type laws; i.e., some states have their own laws that provide benefits similar to the FMLA, but with minor variations. It is especially important that these state laws are considered as part of an employer’s risk assessment when deciding to forcibly designate FMLA or not. Other employers and some Employers Council attorneys have been involved in claims within the Ninth Circuit states (generally speaking, Arizona) where an employer’s decision to forcibly designate FMLA leave was implicated, and no violations resulted from the practice.

Reviewing guidance from other sources, at least one report indicated that the Department of Labor “disagreed” with the Escriba decision. However, there is no official “disagreement” on record with respect to this issue. If true, this would mean that the Department of Labor also read Escriba as standing for the proposition that an employee could decline to use FMLA leave over an employer’s objections, or conversely, that an employer is prohibited from forcibly designating FMLA leave over an employee’s objections. That said, the report (stemming from 2014) lacks detail, including who with the Department of Labor issued this opinion, their rank within the department, where their office was located, and whether that individual has since changed his or her mind. It is mentioned here only insofar as employers encounter this source of information in the course of their own research, such that it may be properly evaluated. In the end, it is not uncommon for different Department of Labor offices to maintain opposing enforcement positions.

What’s an Employer to Do?

Conduct a risk assessment that evaluates all of your jurisdictional (including state and local) requirements, as well as the circumstances leading to the need for leave. Then ask the following questions. What is your past practice? What is your desired practice for the future? What does your policy state?

Consider also the value of “claim avoidance” over “claim defense.” Perhaps you can defend the claim, but do you want to? Is there value for your organization in taking a strong stance over avoiding a claim altogether? Certainly, designating FMLA leave whenever time off is taken for a qualifying reason, and where that reason is substantiated by documentation, can be a powerful tool for employers who need to manage lost productivity due to medical leave taken by their employees.

Just as important is the question, “What are the employee’s reasons for wishing to reserve FMLA leave for the future?” Sometimes, employees refuse FMLA leave simply because they do not understand it and view it as punitive or unnecessarily intrusive on their privacy. Can you help with that? Explore the underlying reasons for the refusal and provide education to the employee about the benefits of FMLA where the root cause is a misunderstanding regarding the objectives of the FMLA.

This is a tough issue for Ninth Circuit employers. When you encounter it, know that there are attorneys and human resources professionals available at Employers Council who know the law, the different positions, and are licensed in the states and districts where Escriba is considered “authoritative.” Rest assured that when we know more, it will be reported here.