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This is part one of a two-part article. Look for the conclusion next week.

According to the US Department of Labor, an employee does not get to choose whether to count a qualifying absence as FMLA or not. But, last week, another court got it wrong. In Amstutz v. Liberty Center Board of Education, an unfortunate decision for employers in general, an Ohio federal court ruled that an employee can affirmatively decline to use FMLA leave even where the reason for leave would have triggered FMLA protections.

The facts of the case. Employee Carrie Amstutz had worked for Liberty Center Board of Education (Liberty) for several years. She worked as a bus driver in the mornings and afternoons, and in a school cafeteria in between. Amstutz had an extensive series of job warnings and suspensions for various performance, attendance, and attitude issues.

In February 2013 Amstutz asked to use sick leave to take the week of February 25 off for her grandson’s birth. Her supervisor approved the leave but informed Amstutz that she could take only one day as paid sick leave and the rest would be without pay. Lo and behold, on February 25 Amstutz called in sick, claiming to have bronchitis that she later said had kept her bedridden and dependent on a breathing machine for the entire week she was absent. Amstutz returned to work on March 5 with a doctor’s note that excused her from work because of “illness” but provided no further details. She filled out Liberty’s sick leave form which included a section where Amstutz could have requested FMLA leave. The form explained that an employee may qualify for FMLA leave for an illness that lasted for 3 or more days. Amstutz did not request FMLA leave which was unpaid, but rather requested paid sick leave. Although no detail is provided, the court observed that Amstutz had used FMLA leave “many times” prior to the absence at issue.

Not surprisingly, the timing coincidence between Amstutz’s requested week of leave (for which pay had been denied but for one day) and her paid sick leave raised eyebrows. Liberty’s superintendent found school security video of Amstutz picking up her granddaughter at school during her time off and concluded that Amstutz had lied about why she was absent. Amstutz was suspended for 3 days without pay. Upon her return to work she was reprimanded yet again for unrelated issues. Shortly thereafter, Liberty fired Amstutz due to “insubordination, misfeasance, dishonesty, and for good and just cause.”

Amstutz filed a grievance with Liberty, then through her union, and then filed claims with the Ohio Civil Rights Commission and the Ohio unemployment department – all of which ruled against her. Not one to take 4 “nos” for an answer, Amstutz filed suit in federal district court.

The court’s ruling. Amstutz claimed that Liberty had violated the FMLA by suspending and eventually firing her for taking FMLA leave. The court ruled that to prove her claim Amstutz had to establish, among other things, that Liberty knew she was exercising her FMLA rights. Relying on Escriba v. Foster Poultry Farms, Inc. (9^th Cir. 2014) the court ruled that an employee can decline to use FMLA leave even where, as with Amstutz and in Escriba, the reason for leave would have triggered FMLA protection. The court quoted as follows from Escriba:

Holding that simply referencing an FMLA-qualifying reason triggers FMLA protection would place employers . . . in an untenable situation if the employee’s stated desire is not to take FMLA leave. The employer could find itself open to liability for forcing FMLA leave on the unwilling employee. We thus conclude that an employee can affirmatively decline to use FMLA leave, even if the underlying reasons for seeking the leave would have invoked FMLA protections.

The Amstutz court concluded that, because Liberty did not know that Amstutz wanted FMLA leave, Liberty could not be liable either for denying FMLA leave to Amstutz or for firing her in alleged retaliation for exercising her FMLA rights. This court decision is contrary to the DOL’s stated position that an employee cannot choose to decline FMLA protections. But the employer won here, so why is this an “unfortunate” decision for employers as I asserted above? When has the DOL spoken on this? What support is there for the DOL’s position? Check back soon for our explanation of why this is a bad decision and how employers should deal with the conflict between the DOL and the federal courts in Part II of this story.