Opposing Counsel: Allowing Employees FMLA Choice is No Cakewalk for Employers
Published: January 12, 2016
In Amstutz v. Liberty Center Board Of Education, 2015 WL 5254988 (N.D. Ohio Sept. 9, 2015), a federal court held that an employee can decline to exercise his or her Family and Medical Leave Act rights, but in doing so loses the act’s protections and benefits. Although the employer won the case, the court’s decision also may have created potential problems for employers in the long run.
Attorneys Eric Meyer and Donna Ballman discuss the case from their opposing perspectives as a management-side and employee-side counsel, respectively, and make recommendations to help employers avoid running afoul of the law.
You can’t have your cake and eat it too.
Donna, I never understood that expression. You give me a nice slice of moist marble cake with rich buttercream frosting and I’m going to devour that slice before you can say “Family and Medical Leave Act.”
And, speaking of FMLA, the Northern District of Ohio had that silly cake expression on the brain when it decided Amstutz v. Liberty Center Board of Education.
Ms. Amstutz missed a week of work with bronchitis. She told her supervisors that she was bedridden and dependent on a breathing machine the entire week she was absent. Except, the odd thing about the bronchitis was the timing. That is, Ms. Amstutz contracted bedridden, breathing-machine-awful bronchitis in the same week that her employer had denied her prior request to use sick leave for her grandson's birth. (The employer permitted the leave, but explained that, under the school district's collective bargaining agreement, Ms. Amstutz could use only one sick day and would have to use personal days for the rest of the week).
Do you believe in such coincidences, Donna? Well, neither did the employer. It reviewed security camera footage from that week, and found video that appeared to show Ms. Amstutz picking up her granddaughter at school.
So, maybe this “serious health condition” wasn’t so serious after all. That could explain why Ms. Amstutz affirmatively declined to take FMLA leave for that week that she was absent. This notwithstanding that: (a) Ms. Amstutz had previously taken FMLA leave and was generally familiar with the process; (b) she filled out a sick leave form for her bronchitis; and (c) that form listed the criteria for FMLA leave and expressly offered it to her if she wanted it.
Well, she didn’t want it; Ms. Amstutz declined FMLA leave. Thus, when Ms. Amstutz later asserted FMLA discrimination claims, the court concluded that they were “not viable.” Put simply, when an employee elects not to take FMLA, that employee does not receive FMLA protections.
But, decisions like this one and the 9th Circuit’s decision in Escriba v. Foster Poultry Farms, Inc. (743 F.3d 1236 (9th Cir. 2014)) don’t leave me feeling all warm and cozy. Specifically, it’s this Escriba quote, which made its way into Amstutz, that gives me pause:
Holding that simply referencing an FMLA-qualifying reason triggers FMLA protection would place employers … in an untenable situation if the employee's stated desire is not to take FMLA leave.
Here’s my takeaway: When it comes to FMLA, the employee’s “stated desire” to take FMLA leave (or not take FMLA leave) is immaterial. That’s because the FMLA regulations are clear that, once an employer knows that leave is being taken for an FMLA-qualifying reason, it must provide a designation notice. And, if an employer knows that an employee qualifies for FMLA leave, it should designate the leave as such, and provide the leave. Providing FMLA leave for FMLA-qualifying reasons effects the purpose of the Act.
But, if an employer wants to give an employee the option to decline FMLA leave, the employer must get that in writing from the employee. Plus, the employer should get a written acknowledgement that the employee understands the rights that he or she is forgoing by declining FMLA leave.
What say you, Donna?
Eric, you ignora … oh, wait. Darn! I’ve been waiting to use that old Saturday Night Live Weekend Update line, but I agree with you. I know. Shocking, huh? An employee-side and management-side lawyer agreeing on something. But this case is one where bad facts made bad law.
The facts in this case were pretty terrible. There were multiple counts with various legal theories, and FMLA was only a minor issue in the matter. Still, I can see employers using this case down the line to attempt to excuse some pretty bad human resources practices.
Among other bad facts, the employee signed a “last chance agreement” after having been accused of spraying industrial cleaning chemicals near kids in the cafeteria. Here’s what the court said happened next:
On May 3, while serving her suspension, Amstutz withdrew her agreement to the LCA, declaring she intended to “use all legal resources available to fight this retaliatory action by school officials and the [union] that I deem necessary. THIS IS AMERICA NOT NAZI GERMANY and I believe my civil rights have been violated.”
It was right after this little gem that she was fired for insubordination.
I’m guessing the judge thought this was, indeed, pretty insubordinate so was inclined to toss her legal claims, including the FMLA claims.
Which brings us back to why bad facts made bad law in this case. It sounds like the notice didn’t expressly notify the employee that they were eligible for FMLA coverage, but left it up to the employee to check a box to request FMLA leave or not. I don’t think this meets the employer’s requirements under 29 CFR § 825.300, which puts the responsibility on the employer to both designate leave as FMLA-qualifying and to notify the employee of their rights.
This case may wrongly give lazy employers the impression that the burden is no longer on them to notify employees of their entitlement to FMLA leave. This will open employers up to potential liability. More fees for us, Eric! But bad for society in general.
I also think it’s a mistake for courts to consider an employee’s declination of FMLA too strongly. I can think of half a dozen reasons given to me over the years why employees declined FMLA protection. These include:
- They were previously retaliated against for taking FMLA leave.
- They didn’t understand the legal protections FMLA provides.
- The boss threatened them.
- HR gave them misinformation.
- They thought FMLA carried a stigma.
- Their doctor refused to fill out the forms.
If courts let employers negligently or deliberately bamboozle employees into declining FMLA rights, the law will quickly become meaningless. Sadly, for both HR and employees, understanding FMLA is not a piece of cake.
My main takeaway from this case is a warning to employers that it’s still your duty to designate FMLA and properly inform employees of their rights and responsibilities. And to employees: stop declining FMLA! As Martha Stewart would say, “It’s a good thing.”
Now, Eric, about that cake …
Tips for Employers
- Employers with 50 or more employees should have an FMLA policy and ensure that employees understand how to request FMLA leave.
- When an employer has enough information to know that an employee needs FMLA leave, the employer should designate the leave accordingly.
- An employee does not need to say the letters F-M-L-A to request FMLA leave. Rather, when the employer has enough information from the employee to know that a request for leave falls within the scope of the FMLA, it should act accordingly.
- Don’t withhold or give bad information about an employee’s FMLA rights. Doing so could subject the employer to an interference suit.
- FMLA documentation is key, especially where the employee specifically rejects FMLA leave. If an employer wants to give an employee the option to decline FMLA leave, the employer must get that in writing from the employee. Plus, the employer should get a written acknowledgement that the employee understands the rights that he or she is foregoing by declining FMLA leave.
Eric B. Meyer, Esq. is a partner in the Philadelphia-based law firm of Dilworth Paxson LLP. Eric is a member of the firm’s Labor & Employment Practice Group and Chair of the #SocialMedia Practice Group. In addition to being a frequent lecturer around the country, Eric also publishes The Employer Handbook (www.TheEmployerHandbook.com), one of the nation’s top labor and employment law blogs. He also serves as a volunteer mediator for the U.S. Equal Employment Opportunity Commission.
Donna M. Ballman has been practicing employee-side employment law in Florida since 1986. She is the author of Stand Up for Yourself Without Getting Fired. Her blog, Screw You Guys, I'm Going Home, was named one of the ABA Blawg 100 and the Lexis/Nexis Top 25 Labor and Employment Law Blogs. She tweets on employment law issues as @EmployeeAtty.