Despite a contrary Ninth Circuit decision, the opinion letter unequivocally states: “Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave” and the leave “counts toward the employee’s FMLA leave entitlement.”
Takeaway: While opinion letters from the Wage and Hour Division’s administrator provide employers with a potential good faith reliance defense for actions that otherwise may constitute violations of law, this particular issue will likely have to be settled with further litigation.
