Can my employer make me waive FMLA protection?

No, an employer cannot require you to sign a waiver of protection under FMLA for future leave or protection from discrimination on the basis of prior use of FMLA. Department of Labor regulations on FMLA prohibit employers from requiring employees to waive FMLA rights and hold any waiver invalid. Like minimum wage and overtime protections, employers cannot require employees to give up legal protections.

All that said, keep in mind that this prohibition on FMLA waivers is for future protections under the law. That means an employer cannot require you to waive protections for future leave or from future adverse action for taking FMLA leave. However, employers can offer certain waivers of FMLA rights and courts will uphold them.

Department of Labor regulations on FMLA waivers

The Department of Labor issues regulations clarifying finer details of the employment statutes under their authority. The Department of Labor enjoys regulatory authority over the Family and Medical Leave Act. Federal courts established rules for when administrative regulations and guidance must be followed. Generally Department of Labor regulations enjoy the force of law on FMLA issues.

One such regulation explains the limits of when an employer can require you to waive your FMLA rights. Under Title 29 of the Code of Federal Regulations, section 825.220 explains:

Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA. For example, employees (or their collective bargaining representatives) cannot “trade off” the right to take FMLA leave against some other benefit offered by the employer. This does not prevent the settlement or release of FMLA claims by employees based on past employer conduct without the approval of the Department of Labor or a court. Nor does it prevent an employee’s voluntary and uncoerced acceptance (not as a condition of employment) of a “light duty” assignment while recovering from a serious health condition (see § 825.702(d)). An employee’s acceptance of such “light duty” assignment does not constitute a waiver of the employee’s prospective rights, including the right to be restored to the same position the employee held at the time the employee’s FMLA leave commenced or to an equivalent position. The employee’s right to restoration, however, ceases at the end of the applicable 12-month FMLA leave year.

The Department of Labor clarifies that this regulation is not intended to prevent waivers of past conduct in exchange for a benefit to the employee. Typically this means settling employment claims in which the employee agrees not to pursue FMLA claims against the employer in exchange for settlement proceeds.

Courts upholding FMLA waivers

Generally courts uphold FMLA waivers when they involve waivers of prior claims in exchange for settlement funds or other benefits. Courts rarely support waivers of future use of FMLA rights even when that waiver is part of an agreement to for greater leave rights for the employee. Individual situations have in rare situations resulted in courts upholding FMLA waivers. If your employer tries to enforce an FMLA waiver then this is a good reason to talk to an employment lawyer who deals with FMLA rights. Lawyers who work with FMLA claims can do the best job to evaluate your situation and whether the employer may prevail enforcing the waiver.

How employees can waive FMLA protections

Employees can waive FMLA for particular leave periods by expressing a desire to not have the time counted against the employee’s allotment of FMLA leave. For example, an employee approved for intermittent FMLA leave for rest and therapy of a back injury could decide to stay home for a day due to pain but ask the employer to not count the day under FMLA and just take the day as a sick day. In this case the leave would ordinarily count as FMLA leave but the employee waived protection.

Why?

Employees sometimes do this to stretch out the amount of leave time they can take from the employer. By using the employer’s paid sick leave but not FMLA saves that day of FMLA leave down the road. It allows the employee to more days off as a combination of paid sick leave policy plus FMLA.

That is a double-edged sword. On one hand, the employee gains an extra sick day; but on the other hand the employer could fire the employee for missing work that day. FMLA would not protect the employee although the employee could have received protection. (The employer may owe unemployment for firing the employee for taking leave under an established paid leave policy but that is less of a problem for the employer than FMLA.) It creates a messy situation where any retaliation for taking leave must be sorted out for its application to FMLA or the non-FMLA sick day. Not a great place for either employer or employee if things go south. That is why many employers refuse to allow an employee to take leave without counting it against FMLA time. When FMLA issues arise talk to an employment attorney.

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