Trevor Caldwell, BridgeTower Media Newswires
A recent opinion letter published by the U.S. Department of Labor’s Wage and Hour Division (DOL) has received considerable attention among employers that deal with administration of protected leave under the federal Family and Medical Leave Act (FMLA).
The letter provided an answer to a question posed by an employer about whether employees could opt to use paid sick leave or vacation before using the 12 weeks of unpaid leave provided under the FMLA. In the letter, the DOL takes the position that any leave taken for an FMLA-qualifying reason, even if it is paid leave provided by the employer, must be counted against the 12 weeks of available leave. In other words, the DOL’s position is that the 12 weeks of available leave under the FMLA runs concurrently with any other paid leaves if the leave is taken for a reason that would otherwise entitle an employee to protected leave under the FMLA.
While many employers across the country have taken the same position as the DOL now has, it is important to remember that the DOL’s opinion letters are merely advisory and not binding on any court. This is especially important for employers in western states to note, because the DOL’s letter directly conflicts with the interpretation of the FMLA taken by the U.S. Court of Appeals for the Ninth Circuit in Escriba v. Foster Poultry Farms, Inc. Thus, employers in Oregon and Washington should be aware that their administration of the FMLA should continue to follow the guidelines set forth by the Ninth Circuit, and that following the DOL’s guidance creates the risk of a legal challenge.
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Employer requirements under the FMLA
As the DOL’s letter notes, the FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons. However, the employer may require, or the employee may elect to substitute, accrued paid sick or vacation leave to cover any part of the unpaid FMLA entitlement period. Further, employers are responsible for designating leave as “FMLA-qualifying,” and must notify the employee that the leave is protected by the FMLA and counted against the 12-week entitlement.
This system seems pretty straightforward, but what happens if an employee wants to exhaust all employer-provided paid leaves before using the 12 weeks of unpaid FMLA leave? The answer to this question is where the Ninth Circuit and the DOL diverge.
The Ninth Circuit: Employees can choose to exhaust paid leaves before using FMLA leave
In the 2014 Escriba case, the Ninth Circuit court decided that an employee may use non-FMLA leave for an FMLA-qualifying reason, and decline to use FMLA leave in order to preserve FMLA leave for future use.
In Escriba, the employer had a policy that required an employee to use and potentially to exhaust FMLA leave if the time off qualified as FMLA leave, even if the employee chose to use paid vacation for the same period. However, Ms. Escriba made a written request to use only vacation. She then overstayed her vacation and was terminated for an unauthorized absence. She sued, claiming that the company should not have allowed her to reject the FMLA leave, which would otherwise have protected her absence.
Foster Farms won, with the court ruling that an employee may reject FMLA leave, assuming the rejection is purely voluntary. That decision was good for Foster Farms, but bad for other employers with policies requiring the concurrent use of FMLA and other types of authorized leave.
Since 2014, the Oregon Bureau of Labor and Industries (BOLI) has also enforced the Oregon Family Leave Act (OFLA) in precisely the same manner.
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The DOL: Paid time off and FMLA leave run concurrently
As discussed above, the DOL in its recent letter comes to the opposite conclusion of the Ninth Circuit in Escriba. In fact, the DOL explicitly says it does not agree with the Escriba decision.
Rather, the DOL concluded that if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week FMLA entitlement and does not expand that entitlement.
So, how should the prudent employer in Oregon or Washington administer FMLA-qualifying leave in light of the opposite positions taken by the DOL and Ninth Circuit? First, employers should know that having a policy that requires the concurrent use of paid leave and FMLA leave for an FMLA-qualifying condition is legal. But the caveat in the Ninth Circuit is that such policies cannot be enforced if the employee rejects FMLA leave in writing.
Further, it is advisable to ask and record (preferably with an employee signature) whether an employee intends to take FMLA leave when the employee is eligible to take it. If an employee declines FMLA leave in favor of paid leave, employers should inform the employee that his or her absence will not be protected under the FMLA and will be subject to normal attendance policies. Taking these steps will significantly reduce the risk of an employee claiming in the future that he or she was either entitled to more leave than allowed by the FMLA and OFLA, or that he or she should not have been subject to the employer’s normal attendance policies when absent due to an FMLA-qualifying condition.
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Trevor Caldwell is an associate at Barran Liebman LLP in Portland. He represents employers in traditional labor and employment matters. Contact him at 503-276-2117 or tcaldwell@barran.com.
