From the beginning of FMLA-time in 1993, the U.S. Department of Labor FMLA regulations have required employers to designate leave as FMLA leave “[w]hen the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason.” 29 CFR § 825.300(d). The DOL’s injunction seemed mandatory and many an employer has rejected an employee’s request to “save” FMLA leave for some later planned event.

But a recent decision of the United States Court of Appeals for the Ninth Circuit has cast doubt on the mandatory-ness of that injunction. In Escriba v. Foster Poultry Farms, Inc. (9th Cir., February 25, 2014), the plaintiff had asked for two weeks of vacation to visit her sick father in Guatemala, an apparent FMLA-qualifying reason. Having taken FMLA leaves on 15 occasions, the plaintiff was not an FMLA-neophyte. She reiterated that she wanted two weeks of vacation and did not need additional, unpaid time to care for her father. When she did not return to work at the end of her vacation, and was absent for three days, the defendant terminated her employment.

The plaintiff responded by arguing that the employer interfered with her FMLA rights by not designating her time off as FMLA leave because, despite her prior disavowals, it was required to do so. The court rejected the plaintiff’s argument, citing the DOL regulation which states that “in all cases, if it is necessary to have more information about whether FMLA leave is being sought by the employee,” the employer should make further inquiry. (emphasis added). Based on its interpretation of that regulation, the Court concluded that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”

This case raises the very practical question of how an employer should respond the next time an employee seeks time off for an FMLA-qualifying reason, but requests not to use FMLA. To designate or not to designate FMLA leave will be the question.

While this decision applies within the Ninth Circuit’s jurisdiction, it is uncertain whether other appeals courts will follow suit. The ramifications of this decision are significant. For employers that require employees to substitute paid leave for unpaid FMLA leave, giving the employee the option of substituting effectively guts the substitution requirement. Only time will tell whether this case trumps the 20 year FMLA requirement that an employer designate leave as FMLA when it has information that the reason for the leave is covered by the FMLA, or whether the case is an outlier.