PART II: FMLA? No, no, no! The employee does NOT get to choose!

by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel

October 06, 2015



Last week, we reviewed the facts and court ruling in Amstutz v. Liberty Center Board of Education, which I called an “unfortunate decision” for employers even though the defendant employer won the case. In short, the court ruled that an employee can decline to use FMLA leave for a qualifying absence and then cannot benefit from the FMLA’s protections. I also expressed that the court’s decision is contrary to the FMLA regulations and the US Department of Labor’s position on the issue. So when has the DOL spoken on this?  What support is there for the DOL’s position?

The DOL’s position. The DOL has made its position very clear on this issue. At a national meeting in San Francisco in August 2015 (the Disability Management Employer Coalition Annual Conference), Helen Applewhaite, FMLA Branch Chief, emphatically stated that an employee does not get to choose whether the employer will apply FMLA to his/her leave.

And therein lies the problem with the courts’ reasoning. The Escriba court stated, and the Amstutz court repeated, that “Holding that simply referencing an FMLA-qualifying reason triggers FMLA protection would place employers . . . in an untenable situation if the employee’s stated desire is not to take FMLA leave.“  This statement presupposes that an employee has a right to choose whether to apply the FMLA to a leave taken for an FMLA-qualifying reason – but no such right exists.

The DOL’s stated position is supported by the FMLA regulations. The employer’s notification obligations are absolute and must be followed in every circumstance where the employee’s absence is or might be for an FMLA-qualifying reason. Consider these excerpts from the regulations regarding employer notice requirements (emphasis is mine):

[W]hen the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave.

Employers shall provide written notice detailing the specific expectations and obligations of the employee [under the FMLA] and explaining any consequences of a failure to meet these obligations.

The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee as provided in this section.

If the employer determines that the leave will not be designated as FMLA-qualifying (e.g., if the leave is not for a reason covered by FMLA or the FMLA leave entitlement has been exhausted), the employer must notify the employee of that determination. . . .

29  C.F.R. § 825.300(b), (c), and (d). There is simply no provision in the regulations for an employee to choose whether to apply FMLA leave to a requested absence. In the last excerpt above, the only examples for not designating a leave as FMLA relate to the unavailability of FMLA leave for the employee, not to the employee declining to use FMLA.

A different result from the DOL?  An employee who believes his FMLA rights have been violated can either file a complaint with the DOL or file a lawsuit in court. Ironically, although Amstutz filed complaints with  4 separate entities (Liberty, her union, the Ohio Civil Rights Commission, and the Ohio unemployment department), she did not file with the DOL, the one forum that probably would have extended FMLA protections to her – although she still might not have won in the long run.  Based on the DOL’s emphatic statement denying an employee’s right to choose, and on the regulations, it is very likely that the DOL would have found that Liberty had violated the FMLA. Liberty’s failure to provide the required notices alone would have constituted FMLA interference and could have subjected it to liability. Same for the employer in Escriba.

The employer won – so why is this an unfortunate decision for employers?  Like Escriba, this opinion seems like an employer’s victory, but the real implications of the holding are bad news for employers in general. True, Liberty avoided liability. But the court’s ruling (and that from the 9th Circuit in Escriba) leaves employers playing a guessing game about employees’ intent, with yet more uncertainty as to how to handle an employee’s FMLA-qualifying leave of absence. Did the employee intend to decline FMLA leave and its protections?  Did the employee understand his rights well enough to make this choice, especially without receiving the required FMLA notice of rights and responsibilities?  And, it provides the employee the best of both worlds:  the ability to benefit from FMLA protections when needed, but also to use PTO or other absence policies instead of FMLA and receive more total leave time than the 12 weeks provided by the FMLA.

It didn’t have to be so! The decision is all the more unfortunate because the court did not have to rely on this concept of choice to rule in the employer’s favor. The court determined that because the employee chose not to use FMLA time, she was not then entitled to protections against alleged FMLA retaliation. But there was ample evidence that Liberty had two legitimate nondiscriminatory reasons for Amstutz’s termination that would not have necessitated this ruling: repeated and long term disciplinary and performance issues, and fraudulent use of FMLA time (see my earlier post regarding investigating suspected FMLA misuse and the employer’s honest belief defense.)


Radar Pings – Tips for Employers

PINGSo how can employers deal with the inconsistencies between the Amstutz and Escriba decisions on one hand, and the DOL’s position on the other?

First, determine whether your company operates within Ohio and/or the 9th Circuit – the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. If not, at present the safest approach is to follow the FMLA regulations and DOL guidance: Always provide all notices required under the regulations and always send a notice to the employee designating the leave as FMLA if a) the employee is eligible, b) the leave is for an FMLA-qualifying reason, and c) the employee has not exhausted his/her FMLA leave entitlement within the current leave year.

If you do operate within Ohio or the 9th Circuit, you should still always provide the eligibility notice and the notice of rights and responsibilities. Although not an issue addressed by the courts, nothing in either of the opinions excuses these obligations. A simple failure to provide notice, without more, can be the basis for a claim of FMLA violation.

Regardless of your location, if your company decides to allow employees to decline to use FMLA for a qualifying leave, be sure to get that choice confirmed in writing after the employee has been provided with the eligibility and rights and responsibilities. A check-the-box form like that used by Liberty should make it very clear that the employee does not have to choose between FMLA leave and other types of available leave – in many cases the employee can benefit from both, such as use of PTO or paid sick leave concurrently with FMLA.

And remember, Matrix Absence Management can help your company navigate these difficult issues and provide all the notices required by the FMLA regulations, in a timely and compliant manner.