One of your long-time employees tells you that she has surgery scheduled for next Monday and expects to be out from work for two weeks. You start going over the information you need to designate her leave under the federal Family and Medical Leave Act (FMLA), but she interrupts you and says that she doesn’t want to provide any more information and doesn’t want to “take FMLA.” She will just take sick days and vacation time to cover her absence. You go along with that plan (who wants to deal with all this paperwork anyway?), afraid that “forcing” the employee to designate leave as FMLA, when the employee has clearly stated she did not want to, might give rise to a claim for interference under the FMLA. Are you in the clear?
Not so, said the federal Department of Labor (DOL). In an advisory opinion issued on March 14, 2019, the DOL clarified that an employee cannot choose – and employers cannot allow employees – to exhaust some or all available paid leave benefits before designating an FMLA-qualifying absence as FMLA leave.
The DOL noted that, once an employer has sufficient information to determine that a leave qualifies under the FMLA, it must designate the leave as FMLA leave and notify the employee accordingly, normally within five business days. The DOL specified that “[n]either the employee nor the employer may decline FMLA protection for that leave,” noting that the regulation prohibits employee waivers of their prospective rights under the statute. The agency noted that an employer can require an employee to use accrued paid leave to receive pay during any unpaid portion of the FMLA leave. Importantly, however, the DOL stated that any paid benefits used will run concurrently with FMLA leave, and cannot serve to expand or extend leave rights under the Act.
The DOL acknowledged, in a footnote, that it was directly at odds with a 2014 decision from the Ninth Circuit Court of Appeals, which held that an employee can affirmatively decline to use FMLA leave for an FMLA-qualifying reason. Escriba v. Foster Poultry Farms, Inc., 743 F.3 1236 (9th Cir. 2014). Maria Escriba sued her former employer after the company ended her employment for failing to comply with its “no-call/no-show” policy, following the end of a two-week vacation Escriba took to visit her sick father in Guatemala. Escriba claimed that Foster Poultry was required to designate her leave as FMLA leave (which is job protected), even if she expressly declined that designation. The Ninth Circuit disagreed, finding that an employee can choose not to designate leave as FMLA leave and take paid vacation or sick time off first, thereby preserving their full 12 weeks of FMLA leave for future use. In disagreeing with the Ninth Circuit, perhaps the DOL felt that, while allowing workers to have control over when to use FMLA leave offered some benefits, this choice also may leave workers like Escriba exposed to termination or other disciplinary action, and that on balance, public policy was better served by providing workers job-protected leave.
The advisory opinion provides a useful tool for employers who have had to grapple with how to respond to employee requests not to designate an otherwise FMLA-qualifying absence as FMLA leave – sometimes as a way to extend a leave of absence. However, employers with workers in a state within the jurisdiction of the Ninth Circuit (which includes California, Oregon and Washington, among other jurisdictions), will need to decide whether to follow the DOL guidance or Ninth Circuit opinion in Escriba when faced with a similar situation.
 The federal FMLA entitles eligible employees of covered employers to take up to 12 weeks of leave per year for certain purposes, including if the employee is unable to work as a result of a serious health condition or to care for a family member with a serious health condition. To be eligible for leave, an employee must have worked for the employer for at least 12 months; have at least 1,250 hours of service with the employer in the 12-month period before the start of the leave; and work at a worksite where 50 or more employees are employed within a 75-mile radius. The amount of leave is up to 26 weeks if an employee needs leave to care for a covered servicemember with a serious injury or illness, if the employee is the spouse, child, parent or next of kin of the servicemember.
 29 C.F.R. § 825.300(d)(1).