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Employees Can Affirmatively Decline to Use FMLA Leave

Volume 13, Issue 3
March 12, 2014

On Tuesday, February 25, 2014, in the case of Escriba v. Foster Poultry Farms, Inc., the Ninth Circuit Court ruled that an employee can affirmatively decline to use Family and Medical Leave Act (FMLA) leave, even if the reason for seeking time off entitles the employee to the FMLA's protection. In siding with the employer, the Court stated that the Department of Labor's regulation concerning an employer's obligation to ascertain "whether FMLA leave is being sought by the employee" strongly suggests that there are circumstances in which an employee might seek time off, but not intend to exercise her rights under the FMLA. See 29 C.F.R. § 825.302.

The case involved the 2007 termination of Maria Escriba by Foster Poultry Farms for failing to comply with the company's "three day no-show, no-call rule," after she did not return to work from a two-week vacation used to care for her ailing father in Guatemala. Escriba asked her immediate supervisor for the vacation time, who approved the same, but declined Escriba's subsequent request to tack on one to two weeks of unpaid leave after she questioned Escriba about the need for such additional leave and Escriba specifically stated the additional time was not to care for her father. Escriba did not attempt to return to work until sixteen days after her approved vacation ended. During the entire time she was absent from work, neither Escriba, nor her husband (who also worked for the company) made any attempt to contact the company's human resources department to seek FMLA leave. Interestingly, Escriba had successfully requested FMLA on fifteen prior occasions through the company's human resources department. Pursuant to the company's policy, paid time off does not have to be used concurrently with FMLA leave, thus employees can first exhaust paid vacation time and preserve the balance of any and all available FMLA time.

The Ninth Circuit Court rejected Escriba's contention that her employer was required to designate her leave as FMLA-protected regardless of whether she expressly declined such a designation. Instead, the Court found that such a bright-line rule did not make sense as it would place an employer in an untenable situation if the employee's stated desire is to not take FMLA leave because employers cannot force FMLA leave on unwilling employees.

As the FMLA does not expressly state whether an employee may decline to exercise their FMLA rights, this case helps to resolve an important legal question and provides some needed clarity. It not only underscores that FMLA leave cannot be forced on an employee, but also highlights the importance of employers providing the now mandatory FMLA eligibility/rights and responsibilities notice to employees whenever management acquires knowledge that an employee's leave may be for an FMLA-qualifying reason. See 29 C.F.R. § 825.300(b)-(c).

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.