So this is a follow up to my post, Employee Held to Choice Not to Invoke FMLA.  A bright reader pointed out that the U.S. Court of Appeals for the 9th Circuit made a statement in its decision, which I quoted, that was quite confusing when applied in a broader context.  So let’s discuss:

In the underlying case, Escriba v. Foster Poultry Farms, Inc., the employee requested vacation leave to take care of her father, and was informed that FMLA might apply.  She declined to apply for FMLA, took her vacation leave and then some (without approval) and failed to return to work when she was expected to do so.  She was terminated for violating the no-call, no-show policy.  She then sued, arguing that the Company should have designated the leave as protected FMLA leave, for which she could not be terminated. The 9th Circuit held that the employee could be held to her choice not to invoke the FMLA to cover leave.  In its written decision, as I noted in the blog, the 9th Circuit stated that an employer could actually be held liable “for forcing FMLA leave on an unwilling employee.”

As the bright reader wondered, does this statement mean that an employee who is out on workers’ compensation can choose not to use FMLA during that WC leave?  My immediate reaction was, “Of course not – that’s just ridiculous!”, but it’s true that the statement suggests that the employee could do so.  To the extent it does, I think the 9th Circuit is not really correct (I could say “wrong,” but “not really correct” seems less, well, confrontational – and the 9th Circuit is a federal court while I am simply a lowly attorney.  So let me be somewhat tactful…).  There are several reasons why I think the 9th Circuit is less than right.

First, the FMLA regulations at 825.702(d)(2) do state,

“An employee may be on a workers’ compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA.  The workers’ compensation absence and FMLA leave may run concurrently (subject to proper notice and designation by the employer).”

So, the regulations themselves clearly contemplate that FMLA and WC can run at the same time, and they do not require that the employee ask for the FMLA leave in conjunction with WC leave.  It’s up to the employer to provide notice and to designate the WC leave as FMLA leave.

Next, as employers know, a workers’ comp injury or illness frequently qualifies as a disability under the Americans with Disabilities Act.  The FMLA regulations at 825.702(c)(2) also contemplate that FMLA leave will run concurrently with any leave provided as a reasonable accommodation under the ADA.  The regulations provide a specific example of this:

“A qualified individual with a disability who is also an “eligible employee” entitled to FMLA leave requests 10 weeks of medical leave as a reasonable accommodation, which the employer grants because it is not an undue hardship.  The employer advises the employee that the 10 weeks of leave is also being designated as FMLA leave and will count towards the employee’s FMLA leave entitlement.”

Thus, as with WC leave, the regulations give the authority and responsibility of designating ADA leave as FMLA leave to the employer.

Moreover, I think all employers and courts would agree, it would not be any kind of reasonable accommodation for an employee to decline FMLA coverage while taking ADA-covered leave, and then invoke another 12 weeks of FMLA leave after the ADA leave is finished.  And even then, if the second FMLA-eligible event is also an ADA-covered disability, the employee could again decline the FMLA leave and take ADA leave.  When would FMLA ever apply?  That’s simply nonsensical, and inconsistent with the purpose of these laws.

Finally, as my colleague Jeff Nowak (both of our firms are members of Worklaw, a network of firms that specialize in employment and labor law) points out in his excellent blog post, “Can an Employee Decline FMLA Leave Even Though the Absence Is Covered by the Act?“, on his excellent, award-winning blog,

“At 29 C.F.R. 825.301(a), the DOL tells us, ‘Once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave].’ There is nothing in this regulatory provision to suggest that the employee can influence this process. To the contrary, the regulation states that the employer designates once it knows the absence is for an FMLA-qualifying reason.”

So, I agree with Jeff, who says that you should ignore the 9th Circuit and designate the leave as FMLA if it qualifies for coverage.