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April 22, 2015

Numerous times over the past year, we have heard human resource professionals, employers, and attorneys discussing Escriba v. Foster Poultry Farms, Inc. This is an odd court decision from the Ninth Circuit Court of Appeals which addresses the question of whether an employer can designate an employee's absence as Family and Medical Leave Act (FMLA) time, over the objection of the employee. Repeatedly, we have been asked what impact this decision has on employers outside of the Ninth Circuit. Our position is that there is no impact, although it may cause some anxiety.

Over the 20 years since the enactment of the FMLA, federal courts have issued numerous decisions interpreting and explaining the law and describing how the federal Department of Labor (DOL) regulations promulgated under the statute should be applied. At this point, employers should feel confident that the basic framework of the law is no longer in dispute. Then along comes an outlier decision out of the Ninth Circuit, Escriba v. Foster Poultry Farms, Inc., decided in 2014, which raises questions regarding the fundamental right of employers to designate FMLA leave time.

The FMLA requires covered employers (which includes all public sector employers, regardless of size) to provide eligible employees (who have worked for the employer for at least 12 months, who have worked at least 1,250 hours in the prior 12 months, and who are a part of a workforce of at least 50 employees) with up to 12 weeks of unpaid leave if the employee experiences certain qualifying events. Those events include the arrival of a new child in the employee's home (by birth, adoption or foster care placement); the employee's own serious health condition; a serious health condition affecting a member of the employee's immediate family (and for whom the employee is a caregiver); and for addressing family issues which arise from military deployments. There is a separate 26 week leave entitlement for military caregivers.

The FMLA anticipates that employees will request a period of FMLA leave and provide employers with the information necessary to establish that they have a qualifying need for time off. Once the employer receives medical information justifying the employee's request, the employer "designates" the period of absence as FMLA leave. For example, an employee might request four weeks of FMLA leave due to a scheduled surgical procedure. Upon obtaining confirmation from a health provider that the employee will actually need four weeks of leave, the employer may designate that time off as FMLA leave. The unpaid FMLA leave may, by employer policy, run concurrent with the employee's use of paid time off, or while the employee is receiving workers' compensation or disability benefits.

But what if the employee does not request FMLA leave or affirmatively states that he or she does not want to use FMLA? Consider this scenario: an employee has accrued substantial sick leave, which under his employer's policies, may only be used for the employee's own health issues. The employee has an immediate need for four weeks off for a surgical procedure. The employee also has an elderly parent who will need care later in the year. In order to maximize his available FMLA leave for use in caring for his parent, the employee tells the employer that he wants to use his sick leave, but not his FMLA leave, for the surgical procedure absence. If this was permitted, the employee could end up missing 16 weeks of work (4 weeks of sick leave plus 12 weeks of FMLA).

Can an employee refuse to have a period of absence designated as FMLA leave? This was the question that arose in the Escriba case. Ms. Escriba, the plaintiff, requested two weeks of vacation leave to care for her ailing father. Her supervisor approved this request. She then requested an additional period of unpaid time off. After Escriba told her supervisor that the additional time off was not related to her father's illness, the request was denied. Despite the denial of additional time off, Ms. Escriba did not return to work until 16 days after her approved vacation leave ended. Her employer fired her for violating its "no-show, no-call rule." Ms. Escriba filed a lawsuit alleging that the employer had violated the FMLA, in that it knew that she had a FMLA qualifying event (her father's illness) and should have given her FMLA leave.

The trial court found in the employer's favor. On appeal, the Ninth Circuit affirmed the trial court's decision, holding that her unapproved absence was not protected under the FMLA because she elected not to designate that time off as FMLA leave. The Court concluded 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 reasoned that an employee may request time off but still decline to use FMLA leave even if the time off qualifies, in order to preserve FMLA leave for future use. The Court held that having declined an opportunity to use FMLA leave, Ms. Escriba could not claim FMLA protection when she violated the employer's policies regarding use of non-FMLA leave.

This ruling, while favorable to the employer in the unique facts of the Escriba case, are generally troubling to employers, who have long understood that leave for a FMLA qualifying event can be designated as FMLA leave regardless of an employee's wishes. This understanding is supported by the U.S. Department of Labor regulations, which have been consistently interpreted as allowing employer designation.

So are employers now required to provide employees with a choice regarding use of FMLA? The short answer is no. The Escriba decision is only binding on employers located within the Ninth Circuit's jurisdiction. New Hampshire and Maine are within the jurisdiction of the First Circuit Court of Appeals, which has not issued any similar decisions. As the language of the DOL regulations appear to clearly support the right of employers to designate time off as FMLA-leave time, there is no need for employers to change their current FMLA policies and practices.

Employers should note that the best practice is to provide eligible employees with written notice of FMLA leave designation immediately upon the commencement of a period of absence. While employers can, in certain circumstances, retroactively designate a period of leave as FMLA leave, notice at the beginning of a leave period (including leaves that qualify for workers' compensation, STD or LTD benefits) provides clearer guidance to employees regarding their rights and obligations.

Related Professional

  • Mark T. Broth
  • James A. O'Shaughnessy

  • Related Practice Areas

  • Employment & Labor

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