U.S. Department of Labor flips the bird for FMLA-eligible employees who then try to decline FMLA leave

Well, not literally. But, bear with me, and it’ll all make sense in a minute.

Can an employee decline FMLA leave?

The Family and Medical Leave Act entitles eligible employees to take 12 weeks of job-protected leave in 12 months.

Maybe, you’ve heard of it. Some of you fanboys and fangirls dig the #intermittentleavelife. But, we’ll save that lovefest for another day.

Today, I want to talk about a scenario that inevitably comes up when I present to HR audiences about FMLA: autograph lines around the block can an employee who clearly articulates a need for FMLA leave then go ahead and decline it?

Back in 2014, the Ninth Circuit Court of Appeals concluded that an employee may use non-FMLA leave for an FMLA-qualifying reason and decline to use FMLA to save it for future use. That case is called Escriba v. Foster Poultry Farms. My buddy, Jeff Nowak, was not a fan of that decision.

It turns out; neither is the U.S. Department of Labor Wage and Hour Division.

Yesterday, in this opinion letter, DOL disagreed with the Ninth Circuit’s ruling in the Foster Poultry Farms case.

You might say it even flipped the bird.

(Fortunately, I still have three months to work out my material for my FMLA/ADA mega-session at SHRM Annual.)

Why can’t an FMLA-eligible employee decline FMLA leave?

So glad you asked. Here’s what the DOL had to say in its opinion letter:

First, an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave….Accordingly, when an employer determines that leave is for an FMLA-qualifying reason, the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement….Once the employer has enough information to make this determination, the employer must, absent extenuating circumstances, provide notice of the designation within five business days. Accordingly, the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.

Now, your mileage may vary. For example, just because the DOL flipped the bird — and now I’m beating a dead horse — the Ninth Circuit’s decision still binds employers within its jurisdiction.

But, for the rest of you, this DOL Opinion Letter may persuade your local federal judge. I’m persuaded.

Bottom line.

If an eligible employee puts you on notice of the need for FMLA leave, provide the requisite FMLA forms. And, an the rarest of rares when an employee then requests to take another kind of leave instead of FMLA leave, unless you’re in the Ninth Circuit, flip ’em the bird designate the leave as FMLA.