Employers, beware. The Ninth Circuit Court of Appeals* has issued a decision that adds another wrinkle to your FMLA administration. This case is a pro-employee decision hiding in sheep’s clothing. Even though the employer won on the specific facts of the case, the court’s holding creates complications for FMLA management, muddies employers’ FMLA obligations, and undercuts some basic employer FMLA rights (yes, there are a few).

On the other hand, the ruling provides employees with the best of both worlds: mandatory FMLA leave and job protection when needed, or more time off when PTO can be used instead of FMLA. Here is the key sentence from the court’s opinion:

We thus conclude that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

For an excellent summary and analysis of the puzzling facts and court ruling in this case, take a look at Jeff Nowak’s article on FMLA Insights. For our part, we think the FMLA regulations are clear: neither the employee nor the employer can 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.

So, we think this court ruling is contrary to the DOL’s historical interpretation and enforcement of the FMLA.  We hope that the DOL will speak out in support of its position.

In the meantime, Reed Group will be telling our clients to disregard the Escriba opinion, especially if they’re outside the Ninth Circuit.  For the faint of heart who feel they must follow the court’s ruling, we’d strongly advise employers to get written confirmation of the employee’s intention to defer FMLA coverage for a qualifying absence.  In cases we handle, Reed Group will provide the employee with the required eligibility and designation notices – nothing in the court’s opinion excuses the employer’s obligation to provide these notice, even if the employee wants to decline FMLA protections.


*The Ninth Circuit is the federal appeals court covering the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

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