Can an Employee Refuse FMLA Leave?

Most employees understand that, at the very least, you must notify your employer of your need for FMLA when you request time off. But can you actually decline FMLA leave? That is – can you choose paid sick leave over FMLA? A recent case addressed this particular issue and the answer was yes, you can refuse FMLA leave. So be careful what you sign, because you could be giving up those rights.

Amstutz v. Liberty Center Board of Education

Carrie Amstutz worked for a local school district in Ohio. She requested a week of sick leave in order to be present at her grandchild's birth. However, under her collective bargaining agreement, she was only allowed one sick day. She would need to use personal sick days for the remainder of her time off. Immediately after her grandchild's birth, Amstutz called in sick with bronchitis and missed work the rest of the week. The sick leave form she completed included a section that allowed her to request FMLA leave for her absence by checking a box. Amstutz opted for regular, paid sick leave, as opposed to FMLA.

Employee Files Lawsuit for FMLA Interference After Termination

Amstutz's "sick leave" seemed too convenient in lieu of her desire to take a week off for her grandchild's birth at the same time. As it turns out, video footage from the school's security camera confirmed that deception was likely involved. Amstutz had claimed she was bedridden with bronchitis; however, the school surveillance video showed her picking up her granddaughter from school during that period of time. Her employer later terminated her due to a performance issue unrelated to her sickness.

The Court Ruling on FMLA Interference

After she was terminated, Amstutz claimed that her employer failed to characterize her leave as FMLA, which may have protected her from termination. The court, however, found that she had declined FLMA leave in this situation. She knew the school's policy on requesting FMLA leave and was specifically asked on the sick leave form whether or not she was requesting FMLA. Therefore, her election of paid sick leave meant that the school "was no longer obligated to her" under the FMLA. Furthermore, the court ruled that she could not "retroactively" invoke an FMLA right she previously chosen to forfeit.

The Lesson to Be Learned from This Court Decision

This case brings an important issue to light for any employee seeking time off, especially when their request involves FMLA leave. Pay attention to any leave forms your employer requires you to fill out. Although you do not necessarily have to mention the FMLA to be covered under the statute, you can specifically decline FMLA coverage. If the form allows you to select FMLA leave, as opposed to paid sick leave, be sure that you make an intentional, informed decision. If you decline to select FMLA, you may be waiving the protections that the FMLA provides.


If you have any questions concerning your rights under the FMLA, or if you believe these rights have been denied you, please contact Wrady & Michel, LLC. Our Birmingham-based employment law attorneys can be reached by calling our office at (205) 265-1880 or by filling out an online case evaluation form.

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