Seyfarth Synopsis: The Department of Labor issues an opinion letter clarifying that employers must promptly designate FMLA leave, regardless of the availability of paid leave.

What if an employee wanted to say “no thank you” to their FMLA rights, use their other available leave, thereby saving their FMLA time for later and get extra (protected) time off – can they do that?

That used to be an easy “no”– if an eligible employee gave notice of a need for leave for an FMLA-qualifying reason, employers were obligated to designate the time off as FMLA. But in 2014, the Ninth Circuit issued a surprising decision in Escriba v. Foster Poultry Farms, Inc., holding that employees can decline to take FMLA leave, even when their need for leave is for FMLA-qualified reasons. The Ninth Circuit departed from prevailing precedent and created a gray area for employers as to whether they could – or should – involuntarily place employees on FMLA leave when they decline FMLA rights. In the years since, no other Circuits have followed Escriba.

On March 14, 2019, the Department of Labor (“DOL”) issued an Opinion Letter directly rejecting the Escriba decision, reiterating the prevailing view that employers cannot delay designating leave as FMLA leave, where it otherwise qualifies, even if an employee asks.

The question presented to the DOL was whether an employer could allow employees to exhaust some or all available paid leave before designating leave as FMLA, even when the reason for leave is clearly FMLA-qualifying. In no uncertain terms, the DOL rejected this practice. Once an 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, 29 C.F.R. § 825.220(d). In other words, contrary to Escriba, employee preferences are irrelevant and employer compliance is mandatory. When an employer has enough information to determine whether a leave request is for an FMLA-qualifying reason, the employer must follow the FMLA regulations and designate the leave accordingly.

The DOL further reiterated that this does not prevent employers from permitting or requiring that employees substitute available paid leave to cover otherwise unpaid FMLA leave. However, FMLA runs concurrently with any paid leave, and employers cannot expand an employee’s 12-week (or 26-week) FMLA entitlement.

Takeaway for Employers

For most employers around the country, the DOL’s opinion letter simply serves as a reminder of what has long been considered best practice in designating FMLA leave. For employers with operations in the Ninth Circuit, though Escriba has not been overruled, the opinion provides a solid foundation to designate qualifying leave as FMLA, regardless of employee preference. And of course, there is nothing preventing employers from having more generous leave policies (paid or unpaid), with time off beyond the FMLA’s 12-week/26-week allotment. They key is, such additional leave is not FMLA (or FMLA protected).