Can an Employee Waive Their Right to FMLA Leave?

The Family Medical Leave Act (FMLA) was signed into law in August of 1993 by President Bill Clinton and provides up to 12 weeks of unpaid leave each year for employees with a serious health condition, employees dealing with births and adoptions or for employees who are caring for a sick parent, spouse or child. Employees cannot waive their right to the FMLA unless they have prior Department of Labor or court approval.

The Law

• Under the provisions of 29 CFR 825.220(d), from the U.S. Department or Labor, employees do not have the right to waive their FMLA rights. The specific law states that "employees cannot waive, nor may employers induce employees to waive, their rights under the FMLA."

Trade-Offs

• Employers sometimes try to offer trade-offs or incentives to their employees to waive their FMLA rights. It has been well established that the employee does not have the ability to waive these rights and the trade-off, even if well-documented, is completely invalid.

Appeals

• This law has been appealed several times in the Supreme Court by many organizations. Consistently, the law is upheld and these organizations have been declined, despite having signed documentation from their employees "waiving" their right to FMLA.

Court/DOL Approval

• In order to seek court and/or Department of Labor approval to waive FMLA rights, the employer and employee would have to submit a release agreement to the Department of Labor and petition a judge. There is no standardized method to request this waiver as most requests are denied unless extenuating circumstances exists, so the most effective method of reaching the Department of Labor and a judge is with the assistance of a labor attorney. Most frequently, a waiver is granted as part of a settlement between employers and employees when a lawsuit has been pursued. At no point can an employer "compensate" an employee to waive his FMLA rights.