Ok, I will admit it. I have read the FMLA regulations from front to back… several times. An even bigger admission – I actually enjoy reading the regulations.
While managing FMLA leave is not exactly a walk in the park, the regulations are actually quite refreshing. They make sense. They might not answer every question, but they can get you most of the way there if you are willing to spend the time to navigate your way through the tiny print.
Then comes the recently published decision in Escriba v. Foster Poultry Farms, Inc. This case relates to the appeal of an FMLA interference claim, but deals squarely with the issue of whether an employee may refuse to exercise FMLA rights (i.e., whether an employee can decline to take FMLA leave for absences that are otherwise FMLA-qualifying). The Ninth Circuit explains that the Act does not expressly state whether an employee may decline or defer exercising FMLA rights. The regulations, on the other hand, squarely put the requirement on the employer to designate FMLA leave. This suggests it does not matter whether the employee wants to take FMLA leave or not. The employer must appropriately designate the leave. Ahh, I love the regulations. Seems clear cut, right? Wrong.
The new wrinkle in it all is that the Ninth Circuit concluded in Escriba that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.” The Court pointed to an area of the regulations that require an employer to ascertain whether FMLA leave is being sought. This provision is related to the requirement that the employer has to figure out more about the reason for leave (through the certification process, etc.), and the fact that the employee does not have to specifically walk in to HR and say, “I would like to request FMLA leave, please.”
If you thought managing intermittent leave was difficult, think about the practical problems this creates – an employee can arguably save up FMLA leave and take non-FMLA leave days off that otherwise would have qualified as FMLA leave. Now, the employee has an FMLA-bank for a rainy day even though that same employee may have just taken a few weeks of sick days. And, following Escriba, how does an employer enforce its policy that paid days off must be taken concurrently with FMLA leave? What does a company do when an employee is being wishy-washy about whether he or she wants to take FMLA leave? Do they now have to engage in a letter-writing campaign to ascertain how the employee feels about FMLA leave on any given day? This case could result in an employee taking way more leave than he or she is entitled and, for those employees who don’t fully understand the Act, they could potentially lose out on job protection (it’s not absolute, but hey – it helps) if they decline FMLA leave. This truly makes this case a lose-lose for employers and employees.
An employer can still enforce its attendance policy against employees who miss work and decline FMLA coverage. However, it is murky waters for employers because if a company does not properly designate leave as FMLA qualifying, my reading of the regulations (29 C.F.R. 825.301(a)) is that the employer did not fulfill its duty.** Now, Escriba teaches that companies must ignore that duty and, in many instances, do what the employee asks.
If a company is within the jurisdiction of the Ninth Circuit – such as Arizona – this case is troubling.
**Although, one colleague recently pointed out that the Ninth Circuit trumps my personal opinion; therefore, I suppose I will leave it at that.