The Law @ Work

Employees Can’t Opt Out of FMLA

by Marylou V. Fabbo

According to the United States Department of Labor, employers can designate employees’ absences as covered under the Family Leave Act (FMLA) even if the employee doesn’t want to use FMLA time.  Employees do not have the right to decline FMLA leave when they are out for an FMLA-qualifying reason. 

Saving FMLA Time

The purpose of the FMLA is to provide employees with job protection when they need time off to give birth or adopt or to attend to their own and/or family members’ medical serious health conditions.  The FMLA requires employers to provide certain employees with up to 12 weeks of unpaid, job-protected leave per year and up to 26 weeks of military caregiver leave.  It also requires that the employer continue an employee’s benefits during the leave period and reinstate the employee to the same or equivalent position upon return from the leave. 

Despite the job protections the FMLA affords, some employees do not want to use it even when they experience a qualifying event so that they can save their FMLA time for some other purpose.  For example, an FMLA-eligible employee who is pregnant has to have knee surgery that will keep her out of work for 3 weeks.  The knee surgery is an FMLA-qualifying event, but the employee wants to use vacation time for the surgery instead of FMLA because she wants to take the full 12 weeks of FMLA when her child is born later that year.  What is an employer to do?   According to the DOL, an employer can require the employee to use FMLA leave.  

To Designate or Not to Designate

The FMLA Regulations seemed to have made it pretty clear from the get-go:  Once an employer has information that an absence is for an FMLA-qualifying reason, the employer must designate the absence as FMLA leave.  Still, in 2014 the 9th Circuit (the federal appeals court covering Alaska, Arizona, California and Hawaii) held that an employee can decline FMLA leave and use other paid leave even if the underlying reason for the leave is an FMLA reason.  Since that time, employers have not been sure whether to follow the regulations or the court’s ruling.

The DOL, in opinion letter FMLA 2019-1-A, makes it clear that it’s the employer’s duty to designate all FMLA-qualifying leave as such and may not delay the designation of the leave as FMLA.  What that means is that if a leave is an FMLA leave, it’s an FMLA leave—regardless of whether the employee wants FMLA or not. 

If you’ve ever had an employee who’s wanted to use vacation or other time off instead of FMLA leave in order to save his or her FMLA for a later date, the DOL says you can designate the time as FMLA, regardless of the employee’s preference.  Most employers should feel comfortable relying on the DOL’s opinion letter.  However, just because the DOL interprets the FMLA as allowing employers to designate FMLA leave as FMLA leave even against the employee’s wishes, it doesn’t mean a court has to agree.  What you do may depend on your risk tolerance. An employer who wants to designate leave as FMLA even when the employee does not want the employer to do so should consult with an employment attorney before taking action. 

Share this