The heart of the FMLA is job protection for employees during a period of covered leave. Employers are required under the FMLA regulations to designate leave as FMLA-qualifying based on information received from an employee. The employee need not ever mention the FMLA nor ask for it specifically. “Once the employer has acquired knowledge that the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee as provided in § 825.300 (d).” 29 C.F.R. § 825.300(a).
One of the key provisions of the FMLA is that paid leave provided by the employer and accrued pursuant to established policies of the employer will run concurrently with the unpaid FMLA leave. This provision is often unpopular with employees who do not want to use FMLA leave while using paid leave, and recent case law has shown a clear path for employees to get around this provision.
The first case which opened the crack is Righi v. SMC Corporation of America, 632 F.3d 404, (7th Cir. 2011). The court first observed in that case that it does not take much to invoke FMLA rights but an employee can waive FMLA rights if that is expressed clearly. The comment by the Righi court was really not germane to the ultimate decision which was that Righi’s failure to follow regulatory and workplace requirements on notice foreclosed his FMLA interference claim.
A more recent New Jersey case has relied on this comment in Righi about waiving FMLA leave to suggest that an employee covered by a union agreement could opt to use paid sick leave rather than unpaid FMLA leave, and the FMLA leave would not run concurrent with the use of sick leave. The underpinning of the decision In the Matter of Township of Parsippany-Troy Hills, 419 N.J. Super. 512 (App. Div. 2011) is that an employee can explicitly decline FMLA leave.
The facts in the case are very simple. A member of a township union wanted to take four to six weeks off from work to care for a sick relative. The Township asked the employee to submit an FMLA certification form filled out by a health care provider. The employee filled out the form under protest and then filed an unfair practice charge. The essence of the charge was that an employee could waive FMLA coverage and choose not to take FMLA leave. He or she should not be compelled to complete a medical certification.
The New Jersey Public Employment Relations Commission (PERC) ruled in favor of the employee, and in a surprising decision, the New Jersey Superior Court, Appellate Division, affirmed. The Township contended that PERC erred in finding that employees could not be required to submit an FMLA medical certification. PERC rejected the argument that the Township needed to determine under FMLA regulations whether the employee is eligible to take FMLA leave. The New Jersey Court rested its decision on Righi in affirming PERC even though there is no provision in the FMLA nor its regulations that allows an employee to explicitly waive FMLA protection up front. Rather, the FMLA and regulations focus on whether the leave would be potentially qualifying under the FMLA, not on whether an employee asks for FMLA leave or explicitly declines it.
The court found that the “FMLA regulations do not address an employer’s duty to designate the leave as FMLA-qualifying when, as in this case, the employee declines FMLA leave and wishes to use paid leave.” The court likened the situation of explicitly declining FMLA leave to the consequences of an employee refusing to submit an FMLA medical certification. In that case FMLA leave may be denied under the regulations. The court said, “Although the regulations permit an employer to require a FMLA medical certification before granting FMLA leave, PERC correctly found that if the employee specifically states that he or she is not requesting FMLA leave, these regulations do not apply, and the employer may not require a medical certification. . . .” The practical consequence in this case was that the employee could take accrued paid leave for a reason that met the FMLA (caring for a family member) and keep whatever FMLA entitlement he might have for later use.
In essence, the court has created a backdoor for employees to use accrued leave and not have FMLA leave run concurrently. That results in the employee pocketing FMLA leave while remaining out of work on accrued paid leave for a reason that would be covered by the FMLA. The court focused heavily on the medical certification as instrumental to determining FMLA coverage. In fact, the regulations state, “If the employer has sufficient information to designate the leave as FMLA leave immediately after receiving notice of the employee’s need for leave, the employer may provide the employee with the designation notice at that time.” 29 C.F.R. §825.300 (2). Would the decision have been the same had the Township simply designated the four to six week leave as FMLA without seeking a medical certification?
If these two decisions are correct that an employee may explicitly waive FMLA protection up front, the substitution of the paid leave provision in the FMLA means very little. All an employee would have to do to avoid the substitution provision of paid leave would be to explicitly waive FMLA leave up front and then take paid leave while retaining his or her entitlement under the FMLA. This is clearly not what Congress or the Department of Labor intended, and there is no support in federal law for this proposition. FMLA leave would only run concurrent with paid leave if an employee did not explicitly waive FMLA leave.
If an employee could waive FMLA protection up front, he or she might technically be subject to discharge during unprotected leave. As a practical matter this would seldom occur where the period of leave was for 12 weeks or less, particularly in the public sector. An employer who discharged an employee during a period of paid sick leave following an explicit waiver of FMLA protection could never satisfactorily prove that an employee understood the consequences of the waiver. Courts would focus on whether the absence was for reasons that were protected under the FMLA, not on whether an employee explicitly waived FMLA protection. In Righi, the plaintiff sent an email to the company stating, “I do have the vacation time, or I could apply for the family care act, which I do not want to do at this time.” The District Court held that this statement manifested an explicit waiver of FMLA rights. The Seventh Circuit held, “We disagree. Read in the light most favorable to Righi, the e-mail leaves open the possibility that Righi might want to use FMLA leave after all. . .” Translation: even if the employee attempts to waive FMLA rights, when it comes to discharge, the time out of work will be held to be FMLA protected.