June 2014 Bar Bulletin
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June 2014 Bar Bulletin

The Future under FMLA's Designation of Leave Provisions

By Karen Sutherland


The Family Medical Leave Act (FMLA) is not known for its simplicity, and it just became more complex for employers and employees in the Ninth Circuit.

Escriba v. Foster Poultry Farms, Inc.1 addressed the arcane but important issue of whether an employee's time off should be designated as FMLA leave if the employee does not want it to be designated as FMLA leave. This issue may arise in several contexts; for example:

  • The employer wants to designate all employees' leave as FMLA leave if it fits the criteria for FMLA leave so as to have a uniformly applied policy and/or to control the amount of time off that employees can take.
  • The employee wants to use accrued paid time off for an event that fits the criteria for FMLA leave, but does not want to designate it as FMLA leave in order to save FMLA leave for some other, future event.
  • The employer forgets to designate time off that fits the criteria for FMLA leave as FMLA leave and wants to make the designation retroactively.
  • The employee forgets to request that time off fitting the criteria for FMLA leave be designated as FMLA leave.
  • The employee or the employer change their mind as to whether leave originally not designated as FMLA should be designated as FMLA leave.

FMLA leave is protected leave. With some exceptions, an employee on FMLA leave is protected from losing his or her job, and employees are protected from retaliation for exercising their rights under the FMLA. For example, if an employee is on leave that is not designated as FMLA leave, he or she could be subjected to discipline for violating the employer's attendance policy.

Prior to Escriba, many employers interpreted the FMLA regulation "Designation of FMLA Leave" as requiring the employer to make a decision as to whether to designate leave as FMLA leave if the employee stated a qualifying reason for the needed leave and otherwise satisfied the notice requirements for FMLA leave, which vary depending on whether the need for leave is foreseeable or unforeseeable.2

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