When the Ninth Circuit Court of Appeals, which covers California, issued its decision in Escriba v. Foster Poultry Farms last year, the decision was viewed as a victory for employers.  Now, however, the decision is raising more questions than answers as employers struggle with designating FMLA leave.

In Escriba, an employee declined to use FMLA when she left work to care for her ill father, opting to use two weeks of vacation time instead.  When the employee was terminated for failing to report back to work after the two weeks, she filed a lawsuit claiming that her termination was unlawful interference with her FMLA rights.  The Court upheld the termination because the employee chose not to have her time off count as FMLA leave and therefore, she was not entitled to job protection under the Act.  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.

Straightforward right?  Not so much.  Since the Escriba decision, employers are now unsure what to do when an employee refuses FMLA leave and when the reason for the leave is clearly an FMLA-triggering event.  Are employers now prohibited from designating leave as FMLA when the employee doesn’t want it so designated?  Or, can an employer designate leave as FMLA even if an employee prefers to use another type of leave?

The answer to these questions is that employers may still designate leave as FMLA even if the employee wants it to be considered differently, if the absence is for an FMLA qualifying reason.

First, there is nothing in the Escriba decision that expressly prohibits employers from unilaterally designating FMLA leave.  Escriba is an odd case involving strange facts, and among these is that for whatever reason, the company chose to accept the employee’s request to use vacation time to cover the absence even though the company had information that the leave could have qualified for FMLA.  The Court’s reasoning never contradicts that the company could have designated the leave as FMLA if it wanted, but simply elected not to do so.

Second, the FMLA regulations support an employer’s right to designate FMLA leave if the employee’s absence is for a FMLA-qualifying reason.  The regulations state the employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee.  In particular, under the regulations when the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee, generally within five business days, whether the leave will be designated and will be counted as FMLA leave.  If the employer determines that the leave will not be designated as FMLA-qualifying (e.g., if the leave is not for a reason covered by FMLA or the FMLA leave entitlement has been exhausted), the employer must notify the employee of that determination.

Sometimes employees will attempt to prevent employers from designating FMLA by not providing a medical certification.  If this happens, the employer can still designate FMLA if it has enough information to determine that the leave qualifies under the FMLA.  While obtaining medical certification is strongly recommended, the regulations do not expressly require it.  The regulations state “if any employer has sufficient information to designate the leave as FMLA immediately after receiving notice of the employee’s need for leave, the employer may provide the employee with the designation notice at that time.”  For example, in Escriba, the employee told her employer that she wanted time off to care for her ailing father.  In holding that the employee could refuse FMLA leave, the Court implicitly suggested that the employee’s care for her father was an FMLA-qualifying event even though there was no evidence that a medical certification was provided.

Nevertheless, employers who want to designate FMLA leave without medical certification should proceed with extreme caution and consult with legal counsel.  Improperly designating FMLA leave when no qualifying reasons exist could lead to an FMLA interference claim.