Commentary & Opinion
By Jon Hyman
Mar. 3, 2020
The answer is a qualified “yes.”
Conventional FMLA wisdom had always been that if an eligible employee gave notice of a need for an FMLA-qualifying leave, the employer was required to designate the time off as FMLA. That wisdom changed, however, with the 9th Circuit’s 2014 decision in Escriba v. Foster Poultry Farms. Escriba held that the FMLA permits an employee to decline to take FMLA leave, even when the need is for an FMLA-qualified reason. No other circuit has followed Escriba (although the Northern District of Ohio did in 2015). Last year the Department of Labor published an opinion letter [pdf] that expressly rejected Escriba, restating the historically prevailing view that an employer cannot delay designating qualifying leave as FMLA leave, even if an employee asks it to do so.
Practically speaking, the denial of an FMLA-qualifying leave as FMLA-designed leave might be a no-harm/no-foul, as long as the employee does not lose any other rights in the process. If the employer permits the employee to take the leave as unpaid, restores the employee to the same or substantially similar job at the end of the unpaid leave, otherwise treats the employee as if they were on an FMLA leave, and does not retaliate against the employee, a refusal to designate qualifying leave as FMLA leave should not cause any legal issues. It’s no different than having a leave policy more generous than what the FMLA requires … it just grants extra leave on the front end instead of the back end.
We build robust scheduling & attendance software for businesses with 500+ frontline workers. With custom BI reporting and demand-driven scheduling, we help our customers reduce labor spend and increase profitability across their business. It's as simple as that.
Hi, My name is Meg and this is my introduction to Workforce.com
Find out how Workforce.com powered vaccine sites with demand driven scheduling and attendance.
LegalCalifornia’s push for a 32-hour workweek explained, and how to prepare
Summary: California is considering a 32-hour workweek bill for businesses with over 500 staff 4 day wee...
32 hour workweek, 4 day workweek, california, legislature, overtime
LegalA business owner’s guide to restaurant tipping law
Business owners in the restaurant industry are in a unique position when it comes to employee tips. As ...
restaurants, tip laws, tipping
ComplianceThe 10-minute guide to 2021 labor law compliance
Labor laws are a potentially lethal minefield for companies, particularly in today’s turbulent labor ma...
compliance, HR, HR technology, human resources, labor law compliance