June 28, 2019 | Category: FMLA

If the interpretation and application of the Family Medical Leave Act (FMLA) wasn’t already complicated enough for employers, the Department of Labor (DOL) just threw a monkey wrench into the mix.

In March 2019, the DOL issued an advisory opinion that attempted to clarify whether an employee can choose to exhaust their paid leave prior to designating an FMLA-qualifying absence as FMLA leave. The DOL effectively said no.

In the advisory opinion, the DOL unequivocally stated that “an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave.” Put simply, 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, even if the employee would prefer the employer delay the designation. The DOL did, however, recognize that their position was directly at odds with a 2014 Ninth Circuit Court of Appeals decision.

In Escriba v. Foster Poultry Farms, Inc., the Ninth Circuit addressed an employer’s obligation to designate a request for leave as FMLA-qualifying, despite an employee’s election to use paid vacation in lieu of FMLA leave.

In that case, the plaintiff filed a lawsuit against her former employer after she was terminated for failing to comply with its “no-call/no-show” policy. The plaintiff had requested leave to take care of her ailing father in Guatemala, but specifically requested that the leave not be designated as FMLA, but rather, that the leave be designated as vacation time. After the plaintiff exhausted the two weeks of vacation, the plaintiff did not return to work and was subsequently terminated for failing to notify her employer of the additional absences or requesting the additional leave. The plaintiff argued that her employer was required to designate the leave as FMLA once they became aware that the leave was FMLA-qualifying, thereby protecting her employment.

The Ninth Circuit concluded otherwise and held that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection.” The Ninth Circuit’s decision ultimately empowered the employee to make the determination of whether a request for leave would be FMLA leave.

The conflicting opinions of the DOL and Ninth Circuit can be troublesome for employers located within the jurisdiction of the Ninth Circuit, as declining a request for FMLA leave, even at the behest of the employee, could potentially open the employer up to liability for FMLA interference claims.

Nevada employers, which fall within the jurisdiction of the Ninth Circuit, should be diligent in ascertaining and recording whether an employee intends to take FMLA leave, should an employee be eligible to take it. Moreover, having the employee state in writing his or her intent to take or decline FMLA leave will resolve any factual disputes, should an issue arise in the future.

Should you have any questions regarding a specific situation involving a FMLA request, the Nevada Association of Employers can provide you guidance in resolving any potential issues. Contact us today!