A dangerous trend for employers is appearing in FMLA lawsuits.
It’s that of employees requesting that they not use FMLA leave for medical related absences in lieu of some other type of paid time off — and employers allowing them to do so.
The question is: Can employers legally do this?
Two courts ruling on two different FMLA lawsuits in the past two years have actually said “yes.”
This is despite the fact that the law clearly says that when an employer knows that worker qualifies for FMLA leave, it is obligated to provide FMLA leave and designate it as such.
In addition, the law says that even if an employee chooses to use paid leave, FMLA leave can, and should, run concurrently with that other form of leave.
So why are courts ruling that employees can decline having the FMLA clock run on their leave?
For the most part, it has to do with how much knowledge the employees in both cases had of their organization’s FMLA processes. In both lawsuits, the employees had taken FMLA leave multiple times prior to declining to use FMLA leave. As a result, both courts ruled the employees knew full well what they were doing when they declined to use it.
Wanted to use vacation time
The first lawsuit, which HR Morning covered back in 2014, involved Maria Escriba, a poultry farm worker who’d taken FMLA leave on several occasions prior to her grandfather falling ill.
Escriba then requested more leave to help her ill father in Guatemala. And when she asked for leave, she specifically requested that she be allowed to use vacation time instead of FMLA leave time for her trip.
So Escriba left for Guatemala — and never contacted her company again until 16 days after she said she’d be back from vacation, at which point she was terminated per the company’s three day no-call, no-show rule.
After she was fired, Escriba filed a lawsuit claiming FMLA interference, saying that informing her supervisors about her father’s illness should have triggered FMLA protection.
Both a jury and an appeals court sided with her company instead.
The essential question at stake was whether an employee could choose not to use FMLA leave. The court felt Escriba, having used FMLA leave before, made clear choices that highlighted her intention not to use it in this circumstance.
Wanted to sue paid sick time
The second lawsuit is far more recent. It involved Carrie Amstutz, a school bus driver and cafeteria aid for Ohio’s Liberty Center Board of Education.
Like Escriba, Amstutz had used FMLA leave on previous occasions. Then in February of 2013, she came down with bronchitis, or so she claimed (more on that later). So she took a week off from work.
When she returned Amstutz was given a from that said she may qualify for FMLA leave and could request it if she liked. She declined and stated that she wanted to use her paid sick time instead. Her employer obliged (so it didn’t follow up on whether or not she actually had bronchitis).
Not too long after her leave, she was terminated. The school board claimed it was for insubordination (she’d been issued multiple disciplinary write-ups and had even been issued a final warning of sorts). The death blow to her employment at the school board came when she used a commercial-grade cleaner in a cafeteria where children were still eating — something she’d been warned not to do.
After she was fired, she filed an FMLA retaliation lawsuit. She claimed she was fired for having taken FMLA leave when she was sick with bronchitis.
The court didn’t buy it, ruling she couldn’t prove the school board knew she wanted to exercise her FMLA rights.
Reason: She’d taken FMLA on previous occasions, so the court ruled there was no dispute she knew what she was doing when she declined FMLA leave.
The problem with the rulings
Now here’s the troubling part about these rulings, according to legal experts: They have the potential to set a dangerous precedent that it’s OK for employers to offer workers the option of whether or not to apply FMLA leave.
But as attorneys Eric Meyer and Donna Ballman point out nicely here, presenting the option to decline FMLA leave could give employees — and courts — the impression you’re trying to prevent employees from exercising their rights.
So there’s a strong chance you’ll only be able to get away with not applying FMLA leave when an employee qualifies for it in extreme circumstances — like those outlined in the Escriba and Amstutz cases.
As a result, the safest practice from a legal standpoint is to always trigger FMLA leave when someone qualifies for it. That way, you won’t even give them the option to decline.
Cite: Escriba v. Foster Poultry Farms Inc. & Amstutz v. Liberty Center Board Of Education