Outlier Federal Court Decision on FMLA Designation is Troubling, But Not Binding on New Hampshire Employers

Mark Broth and James O'Shaughnessy

Over 20 years have passed since the enactment of the Family and Medical Leave Act (FMLA). Over this time period, federal courts have issued numerous decisions which interpret and explain what Congress intended when the law was enacted and how the federal Department of Labor (DOL) regulations promulgated under the statute should be applied. At this point, employers should feel confident that the basic framework of the law is no longer in dispute. And then along comes the Ninth Circuit Court of Appeals decision in in Escriba v. Foster Poultry Farms, Inc., decided in 2014, which raises questions regarding a fundamental aspect of the FMLA; specifically, whether an employer can designate an employee’s absence as FMLA time, even if the employee does not want to use FMLA leave.

The FMLA requires covered employers (which includes all public sector employers, regardless of size) to provide eligible employees (those who have worked for the employer for at least 12 months, who have worked at least 1250 hours in the prior 12 months, and who is part of a workforce of at least 50 employees) with up to 12 weeks of unpaid leave if the employee experiences certain qualifying events. Those events include the arrival of a new child in the employee’s home (by birth, adoption or foster care placement); the employee’s own serious health condition; a serious health condition affecting a member of the employee’s immediate family (and for whom the employee is a caregiver); and for addressing family issues which arise from military deployments.

The FMLA anticipates that employees will request a period of FMLA leave and provide employers with the information necessary to establish that they have a qualifying need for time off. Once the employer receives medical information justifying the employee’s request, the employer “designates” the period of absence as FMLA leave. For example, an employee might request four weeks of FMLA leave due to a scheduled surgical procedure. Upon obtaining confirmation from a health provider that the employee will actually need four weeks of leave, the employer may designate that time off as FMLA leave. The unpaid FMLA leave may, by employer policy, run concurrent with the employee’s use of paid time off, or while the employee is receiving workers’ compensation or disability benefits.

But what if the employee does not request FMLA leave or affirmatively states that he or she does not want to use FMLA? Consider this scenario: an employee has accrued substantial sick leave, which under his employer’s policies, may only be used for the employee’s own health issues. The employee has an immediate need for four weeks off for a surgical procedure. The employee also has an elderly parent who will need care later in the year. In order to maximize his available FMLA leave for use in caring for his parent, the employee tells the employer that he wants to use his sick leave, but not his FMLA leave, for the surgical procedure absence. If this was permitted, the employee could end up missing 16 weeks of work (4 weeks of sick leave plus 12 weeks of FMLA).

Can an employee refuse to have a period of absence designated as FMLA leave? This was the question that arose in the Escriba case. Ms. Escriba, the plaintiff, requested two weeks of vacation leave to care for her ailing father. Her supervisor approved this request. She then requested an additional period of unpaid time off. After Escriba told her supervisor that the additional time off was not related to her father’s illness, the request was denied. Despite the denial of additional time off, Ms. Escriba did not return to work until 16 days after her approved vacation leave ended. Her employer fired her for violating its “no-show, no-call rule.” Ms. Escriba filed a lawsuit alleging that the employer had violated the FMLA, in that it knew that she had a FMLA qualifying event (her father’s illness) and should have given her FMLA leave.

The trial court found in the employer’s favor. On appeal, the Ninth Circuit Court of Appeals affirmed the trial court’s decision, holding that her unapproved absence was not protected under the FMLA because she elected not to designate that time off as FMLA leave. The Court concluded that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.” The Court reasoned that an employee may request time off but still decline to use FMLA leave even if the time off qualifies, in order to preserve FMLA leave for future use. The Court held that having declined an opportunity to use FMLA leave, Ms. Escriba could not claim FMLA protection when she violated the employer’s policies regarding use of non-FMLA leave.

This ruling, while favorable to the employer in the unique facts of the Escriba case, are generally troubling to employers, who have long understood that leave for a FMLA qualifying event can be designated as FMLA leave regardless of an employee’s wishes. This understanding is supported by the DOL regulations, which have been consistently interpreted as allowing employer designation.

So are New Hampshire employers now required to provide employees choice regarding use of FMLA? The short answer is no. The Escriba decision is only binding on employers located within the Ninth Circuit Court of Appeals’ jurisdiction. New Hampshire is within the jurisdiction of the First Circuit Court of Appeals, which has not issued any similar decisions. As the language of the DOL regulations appear to clearly support the right of employers to designate time off as FMLA leave time, there is no need for employers to change their current FMLA policies and practices.

Employers should note that the best practice is to provide eligible employees with written notice of FMLA leave designation immediately upon the commencement of a period of absence. While employers can, in certain circumstances, retroactively designate a period of leave as FMLA leave, notice at the beginning of a leave period (including leaves that qualify for workers’ compensation, STD or LTD benefits) provides clearer guidance to employees regarding their rights and obligations.

Mark Broth and James O’Shaughnessy are members of the Drummond Woodsum’s Labor and Employment Group and his practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2015 Drummond Woodsum.”  These materials may not be reproduced without prior written permission.”