The Family and Medical Leave Act (FMLA) entitles eligible employees working for covered employers to take up to 12 weeks of unpaid, job-protected leave each year for a number of pre-determined purposes. As many companies operating under the FMLA quickly learn, however, the question of when and how the Act comes into play can be complicated, especially when they are also operating under overlapping statutory and company-created leave policies (such as paid sick leave or vacation), or when employees disagree about whether they are using one type of leave instead of another.

One unnamed employer, confronted with such a situation, asked the U.S. Department of Labor (DOL) whether it was permissible to delay designating certain leave (which was otherwise clearly FMLA-qualifying) as FMLA leave if the employee wanted to, let’s say, use up all of their accrued paid vacation first? The DOL answered this question in an Opinion Letter it released on March 14, 2019, stating, in no uncertain terms: No!

The DOL’s response provides some refreshingly clear direction as to how employers should react when presented with a possible FMLA designation situation, at least in the view of the DOL: Once an employer learns of circumstances that would qualify leave as FMLA leave, the leave must be designated as FMLA leave without delay. The employer is responsible in all such circumstances for designating leave as FMLA-qualifying leave and giving notice of the designation to the employee.

This, of course, is what the FMLA’s regulations have always said, but a 2014 Ninth Circuit case, Escriba v. Foster Poultry Farms, created some uncertainty in this area by indicating that an employee could countermand an employer’s FMLA designation and “affirmatively decline to use FLMA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.” The DOL’s Opinion Letter has now officially disagreed with the Ninth Circuit’s Escriba decision. As the two positions are now directly in conflict with each other, the question becomes, which one should be followed? Unfortunately, if your company’s employees work within the geographic range of the Ninth Circuit (i.e., anywhere within California, Hawaii, Alaska, Arizona, Nevada, Oregon, Washington, Idaho, and Montana), it is not entirely clear which decision controls.

Courts can choose to ignore DOL Opinion Letters in a number of circumstances (such as when the Court thinks that the language of the regulation being discussed is “unambiguous,” or that the Opinion Letter is "plainly erroneous or inconsistent with the regulation”), and, practically speaking, it is often difficult to tell when an Opinion Letter will be ignored or when it will be given deference. Conversely, while Ninth Circuit case precedence is generally more persuasive than an agency’s Opinion Letter on a particular topic, the aging Escriba decision may be given less weight now in light of the DOL’s brand new official position. For purposes of compliance, deferring to the DOL’s position is likely the safer bet, at least as long as it remains the most-recent official viewpoint on the issue and until lower courts within the Ninth Circuit start weighing in on whether the DOL’s position should be given deference despite Escriba.

Assuming the DOL’s Opinion Letter controls, we now have a good indication as to how employers should act if they are presented with a situation where their employee is taking a leave that would qualify as FMLA leave. Again, the DOL’s position is that, once an employer learns of circumstances that would qualify a leave as FMLA leave, the leave must be designated as FMLA leave without delay. The Opinion Letter also suggests answers to several questions that commonly arise for employers:

What if the employee wants to take previously-accrued paid time off (PTO/vacation/paid sick leave) before electing to take FMLA leave? It does not matter – the employer must designate the leave as FMLA leave.

What if the employee expressly tells the employer that they do not want to designate their leave as FMLA leave, and is even willing to go on a leave that will not be protected? It does not matter – the employer must designate the leave as FMLA leave.

What if the employee disagrees with the employer as to whether the leave qualifies as FMLA leave? It does not matter – the employer must designate the leave as FMLA leave (as long as there is enough information to confirm it would qualify as FMLA leave).

What if the employer learns of the basis for the FMLA designation after the employee has already started a non-FMLA-designated leave? It does not matter – the employer must designate the leave as FMLA leave (and retroactive designation may be required).

Why is this so important for employers? Because, as the DOL’s Opinion Letter also points out, failure to adhere to this guideline may constitute an interference with, restraint on, or denial of an employee’s FMLA rights, which opens the battleground for litigation.

Employers should also be reminded of other related FMLA obligations, including the fact that an employer designating leave as FMLA leave must provide a written “designation notice” to the employee within five business days (absent extenuating circumstances) after the employer has “enough information to determine whether the leave is being taken for an FMLA-qualifying reason.” (Under current regulations, retroactive designation is permissible when this is not done timely, however, it may create liability if the employee was harmed or injured from the failure to timely designate. An employee and employer may also agree to retroactively designate an absence as FMLA-protected).

The DOL also gave some guidance as to designating leave as FMLA leave above and beyond the 12 weeks (or 26 weeks for military caregivers) provided for under the Act: this is not allowed. Perhaps counterintuitively, if an employer offers a benefit plan that provides for greater rights than those provided for in the Act, such a benefit must be observed, but it cannot and will not expand an employee’s entitlement to FMLA. A clear example of this is where an employer has a company policy of providing 15 paid weeks of “medical and family leave” that an employee elects to use for an event that the employer learns is FMLA-qualifying. In such a case, the employee’s first 12 weeks of use of the “medical and family leave” would count towards his or her 12 weeks (or 26 weeks for military caregivers) of FMLA leave, and at the end of week 12, FMLA designation must end.

What about the California Family Rights Act (CFRA)? The Ninth Circuit has previously stated that identical standards apply to the FMLA and to the CFRA, which means that violations of either statute "constitute a violation of California public policy." Indeed, CFRA regulations copy the key FMLA regulations on this area of law: “Under all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on information provided by the employee or the employee's spokesperson, and to give notice of the designation to the employee.” As a result, the above guidance, including the resulting uncertainty, will likely apply equally to CFRA leave as it does to FMLA leave, meaning that employers should be taking a closer look into when to designate under both of these Federal and California leave laws.