Man on Crutches - smallIn March of 2014 we wrote about a court decision in the Ninth Circuit Court of Appeals* that created confusion around FMLA leave administration by allowing an employee the choice to decline FMLA leave for a qualifying FMLA leave event. (Escriba v. Foster Poultry Farms, Inc. (Ninth Cir., Feb. 25, 2014). Because the FMLA regulations are clear about an employer’s obligation in these circumstances, we disagreed with the Escriba decision allowing an employee to choose whether the absence is covered by the FMLA. Since Escriba, the U.S. Department of Labor confirmed that it disagrees with the Escriba decision, and this month the Supreme Court of Texas issued an opinion that disagrees with the decision, as explained in Kingsaire, Inc. v. Melendez, (S.Ct. TX Dec. 4, 2015).

Employer FMLA Obligations are Required or Risk Violating Federal Law
In Kingsaire, the employee argued he was improperly placed him on FMLA leave when he didn’t request it for a work-related injury (workers’ compensation injuries usually run concurrently with FMLA). The Kingsaire court confirmed what FMLA regulations state: when an employer knows that a time off request is for an FMLA-qualifying reason, such as an injury at work, the employer has obligations, such as protecting the employee’s job and maintaining health insurance benefits.

The court said “FMLA regulations confirm that the employer is responsible ‘for designating leave as FMLA-qualifying and for giving notice of the designation to the employee.’” Citing regulations 29 C.F.R. §§  825.300 and 825.301 the court went on to discuss the employer’s duty when they know the absence is covered by the FMLA, stating that if the employer failed to designate the  absence under the FMLA, “it would have risked violating federal law.”

Employee Benefits from FMLA Protection
The Texas Supreme Court reminded the employee that he received significant protections when his employer designated his absence under the FMLA, and these protections were not provided by an unpaid, non-FMLA absence; notably job security and health benefits for the 12 weeks of FMLA leave.

What Should Employers Do if an Employee Requests not to use FMLA Time?
We are sticking with our 2014 post: Reed Group believes the FMLA regulations are clear, that neither the employee nor the employer may choose whether to apply the FMLA to a qualifying leave. If the employer knows that a time off request is for a qualifying reason, the employer must designate it as FMLA time. For employers in the 9th Circuit who feel that they must follow the Escriba court ruling, we strongly advise that you obtain written confirmation from the employee of their intention to defer FMLA coverage for a qualifying absence.

No doubt about it, FMLA compliance can be challenging, especially with differing court opinions. Outsourcing FMLA administration with Reed Group, offers clients up-to-the-minute compliance monitoring and system support. For more information, please feel free to contact us at 800-347-7443.