But the DOL opinion letters are merely advisory and do not overturn decisions from federal courts. And it just so happens there is a contradictory opinion on this exact question from the United States Court of Appeals for the 9th Circuit.
Since 2014, the 9th Circuit has held that an employer must permit employees to voluntarily decline FMLA and instead use available paid leave even if the leave is FMLA-qualifying. In other words, since 2014 it has been legal for an employee to decline to start FMLA leave and use paid time off provided by the employer instead even during a FMLA-qualifying absence.
This means Oregon employers need to follow the 9th Circuit and allow employees to decline the use of protected leave while they exhaust their paid leave banks. The same goes for Oregon Family Leave Act (OFLA) leave, as well since the Oregon Bureau of Labor and Industries (BOLI) enforces OFLA in precisely the same manner.
Where does that leave us? A policy that requires the concurrent use of paid leave and FMLA leave for a FMLA-qualifying condition is legal. But such policies cannot be enforced if the employee rejects the application of FMLA to the absence. Conversely, policies that allow employees to decline starting FMLA leave even when they qualify and instead use paid leave to cover their absences are also legal.
Best practice is for the employer to designate every qualifying leave as OFLA/FMLA. However, if an employee declines FMLA for a qualifying absence, the employer should inform the employee in writing that his or her absence will not be protected under OFLA/FMLA and will be subject to the company’s normal attendance policies. If the employee still requests to use only paid leave and not accept the protections of OFLA/FMLA, the employer should honor that request. Taking these steps will significantly reduce the risk of an employee later claiming that he or she was either entitled to more leave than allowed by FMLA and OFLA or that he or she should not have been subject to the employer’s normal attendance policies when absent due to a FMLA-qualifying condition when they declined FMLA’s protections.
For questions on FMLA or OFLA leave and accommodation requirements, contact Trevor Caldwell at firstname.lastname@example.org or (503) 276-2117 and Charlotte Hodde at email@example.com or (503) 276-2102.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2020 by Barran Liebman LLP.
Las Alertas electrónicas son escritas por abogados de Barran Liebman para sus clientes y amigos. Las Alertas no son proveídas como asesoramiento legal, sino solo como anuncios de leyes de empleo, leyes laborales y beneficios de empleo. Si esto ha sido remetido a usted y quisieras empezar a recibir las Alertas directamente, por favor mándanos un correo electrónico o llama a Traci Ray al 503-276-2115. Derechos de autor ©2020 por Barran Liebman LLP.