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Posted May 12th, 2014 in Legal Insights

Family Medical Leave Act Limbo – 9th Circuit Puts State and Federal Regulations at Odds

Which leave should you leave it to? Federal policy states that when an employee needs to take a leave of absence for family or medical reasons, employers must designate this as qualifying leave under the Family Medical Leave Act (FMLA). This is regardless of whether some or all of the leave is concurrently used as paid time off (PTO). But the recent Ninth Circuit Court of Appeals case Escriba v. Foster Poultry Farms held that an employee can decline FMLA leave and even when the leave is obviously FMLA eligible. This ruling, in direct conflict with federal regulations, could mark a titanic shift in how employers are required to treat employee leaves of absence, and how employers should accord other leave benefits, such as paid time off, with the FMLA. “Indeed, this case could spawn a lot of litigation about whether any amount of employee leave time should have been designated as FMLA leave,” says Jen Cornell, a labor and employment attorney with Nilan Johnson Lewis. “That said, my belief is that courts will ultimately consider this Ninth Circuit decision to be non-persuasive on this issue.” Calling the fact that the lower court issued a ruling that is at such odds with federal policy as unique, Cornell further states that the burden on employers of employee leave would be substantially increased if employees could “opt-out” of FMLA, and take all of their paid leave immediately followed by 12 weeks of FMLA leave. For more information on this issue, contact Jen Cornell at or (612) 305-7717. 

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