Can an employee with a FMLA-qualifying condition choose to delay taking FMLA and instead use sick leave, vacation or some other time-off benefit? The answer according to the Department of Labor (DOL) is a resounding “No!”
A DOL Opinion Letter dated March 14, 2019 states “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.” This is true regardless of whether or not the employee still has a balance of accrued leave to be used.
Generosity is Not Permitted
What if the employer just wants to be generous to the employee and/or wants to avoid all that FMLA paperwork for just a relatively short absence? The DOL does not care. Their opinion letter leaves no wiggle room for avoiding the application of FMLA when it states “[T]he employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.”
Perhaps the DOL is concerned that employers might be able to divest employees of certain FMLA rights by delaying formal designation of the leave. For example, an employee who delays FMLA designation might lose FMLA’s protection against absences being counted under an attendance control policy.
Whatever the reason, the DOL opinion letter emphatically tells us that FMLA is not an accrued benefit that employers can just use or ignore as they see fit, nor is it an inconvenience that employers can avoid if they don’t want to bother with it. It is more of a counting or tracking system that ensures that an eligible employee receives 12 (and only 12) weeks of leave.
In this regard, the DOL’s viewpoint conflicts with a 2014 decision from the Ninth Circuit Court of Appeals declaring that employees can choose whether or not to elect FMLA protection and employers can not impose that choice upon them. Under this decision, employees (at least in the 9th Circuit) could elect to use paid sick leave in lieu of FMLA so that they could save their entire 12 weeks of FMLA entitlement for a parenting leave or medical procedure that is planned for later in the year.
What if the Certification is Not Returned?
If employees cannot choose to delay their FMLA leave, can they accomplish the same purpose simply by not returning the FMLA certification form to prevent the employer from designating the time as FMLA? In many cases the answer is “no.” For one thing, the FMLA certification process is not mandatory – employers are free not to seek certification if they otherwise have sufficient information to designate the leave as FMLA. For example, where the employee tells you (or you otherwise learn) that he was in the hospital overnight you have all the necessary information to conclude that the employee has a serious health condition that triggers FMLA coverage. Similarly, if the employee submits a doctor’s note stating that she will be off for five days for outpatient knee surgery, you know what you need to know to designate the time off as FMLA.
If the employer does not have sufficient information to know whether the absence qualifies as FMLA and the employee fails to return the certification form, FMLA regulations permit the employer to deny the FMLA leave and declare the leave unauthorized, possibly subjecting the employee for penalties under an attendance program.
Bear in mind that DOL Opinion Letters do not have the force of law in the same way that a statute or court decision does. Nevertheless, courts do seek guidance from these advisories from administrative agencies in interpreting the law, and the DOL itself will assuredly apply this interpretation of the law when investigating charges or pursuing litigation.
Our best advice for employers outside the Ninth Circuit is to make sure that their supervisors and managers understand the importance of not letting employees resist application of FMLA, especially since the law authorizes individual liability for violations. Employers should also make sure they have consistent policies in how they inquire into absences and obtain information regarding the possibility that FMLA applies, and then aggressively follow your FMLA procedures whenever the law applies.