FACT OR FICTION: An FMLA-eligible employee can decline FMLA leave

Fact or Fiction?That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”

One of your FMLA-eligible employees walks into HR one day and says that she has a serious health condition and would like to take time off to treat her injury. However, the employee, who has paid time off banked away, says that she’d like to dip into her bank of PTO and exhaust that without using any of her 12 weeks of FMLA.

Can your employee affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection?

Answer: Yes*

Indeed, this recent Ninth Circuit decision held exactly that.

So what’s with the asterisk? My FMLA blogging buddy Jeff Nowak, in this post at FMLA Insights, believes that the Ninth Circuit’s decision could ultimately reflect the minority view from the courts:

To be candid, my recommendation is to ignore the [Ninth Circuit] decision and designate the absence as FMLA leave if it indeed qualifies as such. For me, the FMLA regulations are clear. At 29 C.F.R. 825.301(a), the DOL tells us, “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].” There is nothing in this regulatory provision 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.

Ok. Maybe the answer isn’t really clear-cut. However, one thing is: if the employer does want to designate leave as FMLA leave, the regulations require that it serenade me with Chevelle notify the employee.

  • I agree with Jeff on this one. Imagine, the 9th circuit taking such an out-of-the-box position. I hesitate to call it an employee-friendly decision, because the FMLA is all about protecting the employee’s job.

    Let’s think this through for a moment. Let’s say “Sally” requests and is granted PTO to treat her (qualifying) injury and, at her written request, the employer does not classify the leave as FMLA. While Sally is out, Edna, a part-time employee takes over Sally’s responsibilities and her performance is exceptional. The employer promotes Edna to the full-time position, notifies Sally the day before she is scheduled to return that her previous position is no longer available, and that her employment is being terminated. Sally hires Eric to sue her former employer and he argues the employer failed to properly classify the leave as protected under the FMLA. The employer produces an email from Sally requesting PTO to treat her (qualifying) injury and requesting the time not be classified as FMLA. Who wins?

    My money is on Eric (of course!). I don’t see any way an employee can waive the right to FMLA job protection. Thoughts?