Employers Often Designate Leave as FMLA Despite Objections

​Employees eligible for leave under the Family and Medical Leave Act (FMLA) might want to decline FMLA leave for a variety of reasons, but employers often can designate the time off as FMLA anyway.

Note though that in jurisdictions covered by the 9th U.S. Circuit Court of Appeals, the employer must allow the employee to decline to take FMLA leave, said Melanie Pate, an attorney with Lewis Roca Rothgerber Christie in Phoenix. The 9th Circuit encompasses Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon and Washington. Some assert nevertheless that even in the 9th Circuit an employer may designate time off as FMLA despite employee objections.

While most employers choose to designate leave as FMLA even when employees want to decline FMLA, some businesses let employees reject FMLA, noted Steve Bernstein, an attorney with Fisher Phillips in Tampa, Fla.

Reasons for Wanting to Refuse FMLA

An employee is eligible for FMLA if he or she has worked for an employer for at least 12 months, has worked at least 1,250 hours during the 12-month period before the leave will begin and works at a site with 50 or more employees within 75 miles of the facility, noted Elizabeth Schlissel, an attorney with Nixon Peabody in Long Island, N.Y.

If eligible, an employee may take FMLA leave for the following reasons:

• The birth of a child (including prenatal care and incapacity related to pregnancy) or placement of a child for adoption or foster care within the first 12 months after the child's birth, adoption or placement.
  
• The care of an employee's spouse, child or parent who has a serious health condition.
  
• The employee's own serious health condition when it prevents the employee from performing the functions of the job.
  
• A qualifying exigency arising when an employee's spouse, child or parent is on active military duty or has been notified of an impending call to active duty.
  

Employees who are the spouse, child, parent or next of kin of a covered service member or a covered veteran may be eligible for a leave necessary to care for that service member or veteran. The "next of kin" of a covered veteran is the nearest blood relative, other than the veteran's spouse, child or parent, and may include a blood relative who has been designated in writing by the service member as the next of kin for FMLA purposes, a blood relative who has been granted legal custody of the service member, brothers and sisters, grandparents, aunts and uncles, or first cousins. When the veteran designates in writing a blood relative as next of kin for FMLA purposes, that individual is deemed to be the veteran's only FMLA next of kin.

Eligible employees may receive up to 12 weeks of unpaid FMLA leave during a 12-month period; however, employees seeking military caregiver leave may get up to 26 weeks of unpaid leave in a 12-month period.

Workers may want to save their FMLA time for a separate and distinct FMLA-qualifying reason, Schlissel observed. For example, an employee may seek to use only vacation to care for a sick spouse and not FMLA days if the employee is pregnant. That way, the employee can preserve the full 12 weeks of FMLA for after the birth of the child.

Employers also frequently have policies requiring workers to use all vacation days, accrued sick days, personal days and paid time off during an FMLA period, she stated. "If an employee declines to take FMLA leave to care for a sick parent and uses two weeks of vacation time instead, the employee has preserved his or her entire 12 weeks of unpaid FMLA leave," she noted.

In addition, employees may not want to go through the medical certification process, Pate said.

They may not be financially able to take unpaid leave, or they may fear stigma or retaliation, according to Stacy Bunck, an attorney with Ogletree Deakins in Kansas City, Mo.

Require Designation as FMLA or Not?

Employers generally may designate leave as FMLA, even if the employee does not wish to take FMLA leave, Bunck said. "By designating the leave as FMLA, the employer is offering the employee job protection while also starting the 12-week clock," she noted.

[SHRM members-only toolkit: Managing Family and Medical Leave]

Outside the 9th Circuit, an employer clearly can decide whether the employee can refuse to take FMLA leave, Pate noted. (In the 9th Circuit, it must let the employee decline, if he or she chooses.) Pate said she doesn't recommend employees be allowed to decline FMLA outside the 9th Circuit.

"Termination for the resulting unprotected absence could potentially be seen as FMLA interference or retaliation because the employer has a right to designate leave as FMLA-qualifying leave, and the failure to do so could be viewed as a way to set the employee up for termination," she said. "On the other hand, some would argue that the employee does not invoke the protections of the FMLA if he or she declines to take it."

Some employers that let employees refuse FMLA tell the employees that they do so at their own peril, Bernstein observed.

Other employers take a more benign approach and say that while it's up to the employee, he or she is protected either way, Bernstein added. But months of time off in addition to what would have been FMLA leave can be difficult for businesses to absorb, he noted.

"I would advise an employer against terminating an employee until and/or unless an employee has repeatedly expressed a desire to not use FMLA, and this desire has been confirmed in writing," Schlissel said.

Intersection with ADA

Nicole Dunlap, an attorney with FordHarrison in Memphis, Tenn., cautioned employers that their rights under the FMLA can't be viewed in a vacuum.

"You have to remember that many employees who may be eligible for FMLA may also be disabled under the ADA [Americans with Disabilities Act]. Forcing disabled individuals who can perform the essential functions of their job to take unpaid leave that they have not requested would likely be disability discrimination," she stated.

In addition, if an employee with a disability has declined FMLA leave and has requested a reasonable accommodation, the employer must engage in an interactive process with the employee to find an accommodation, she noted.

Dunlap added, "I would be very cautious about forcing employees to take FMLA leave, and I would consider consulting with legal counsel before you do so."