Commentary & Opinion

Can an employer require an employee with a serious health condition to take FMLA leave?

By Jon Hyman

Mar. 3, 2020

Yesterday, in response to my post about coronavirus and paid sick leave, a commenter on LinkedIn asked whether an employer can force a sick employee to take FMLA leave.

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 FarmsEscriba 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.

COVID-19, coronavirus, public health crisisPractically 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.

Also read: COVID-19 and the role of businesses in a public health crisis

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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