Most employers in the 9th Circuit are aware that in 2014, the 9th Circuit ruled that an employee could elect to use vacation instead of FMLA leave so as to preserve FMLA leave for future use. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014).
A March 2019 DOL Opinion Letter makes clear that the DOL disagrees with Escriba. The Opinion Letter responded to an employer’s inquiry about whether it could delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond 12 weeks. The employer had a practice of allowing employees to exhaust some or all available paid leave before designating leave as FMLA-qualifying, even when the leave was clearly FMLA-qualifying from the start.
The DOL stated: “Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.” The DOL also stated that an employer is prohibited from designating more than 12 weeks of FMLA leave (or 26 weeks of military care giver leave). Note, for employers who are also covered by OFLA, there are specific circumstances where an employer can designate up to 36 weeks of leave.
While the Opinion Letter is not law, it strongly suggests that under the FMLA: (i) employees and employers cannot delay or refuse to use FMLA leave when an employee has an FMLA-qualifying condition and needs to take time off, and (ii)employers cannot designate more than 12 weeks of FMLA leave in a leave year (except for military caregiver leave).