Employee May Choose Not to Use FMLA Leave

News Updates
An employee may affirmatively decline to use leave under the Family and Medical Leave Act (FMLA) even if the underlying reason for seeking leave would have invoked FMLA protection, the 9th U.S. Circuit Court of Appeals ruled.
Maria Escriba worked in a Foster Poultry Farms Inc. processing plant in California for 18 years. In 2007, Escriba requested time off to care for her sick father in Guatemala. She initially requested two weeks of vacation leave. Later, when her supervisor asked whether she needed additional leave, Escriba said no. She asked strictly for vacation time, not family leave. The company, therefore, did not designate the leave as FMLA-protected.
Escriba traveled to Guatemala to care for her father but did not return at the end of her two weeks of vacation leave. She did not notify the company of her continued absence, nor did she contact Foster to request a leave extension. Finally, she contacted the company, several weeks after she was scheduled to return to work. Subsequently, Escriba was terminated under Foster’s “three-day no-show no-call rule,” which states that an employee will be automatically fired if he or she is absent for three workdays without notifying the company or seeking a leave of absence.
Escriba filed suit in 2009, alleging violations of the FMLA and its California equivalent. The suit went to trial, and the jury returned a verdict in favor of Foster.
On appeal, Escriba argued that her employer was required to designate her leave as FMLA, regardless of whether she expressly declined FMLA leave. She maintained that referencing an FMLA-qualifying reason for her leave—i.e., taking care of her sick father—was sufficient notice of her intent to take FMLA leave, thus triggering FMLA protection. Foster argued that by expressly declining FMLA leave, Escriba failed to provide sufficient notice of her intent to take such leave.
The 9th Circuit affirmed the jury’s verdict in favor of Foster, concluding that nothing in the FMLA precludes an employee from deferring the exercise of his or her FMLA rights. The court elaborated that there was sufficient evidence to demonstrate that Escriba was given the option and prompted to exercise her right to take FMLA leave, but that she unequivocally refused to exercise that right. There was substantial evidence to support the jury’s verdict that Escriba did not intend to take FMLA leave and, therefore, failed to prove her allegation of FMLA interference.
Escriba v. Foster Poultry Farms Inc., 9th Cir., Nos. 11-17608, 12-15320 (Feb. 25, 2014).
Professional Pointer: In this case the employee’s express refusal of FMLA protection allowed the company to terminate her when she abandoned her job. In most cases, however, an employee taking leave for an FMLA-qualifying reason will remain in contact and seek to return to work.
Marc A. Sugerman is an attorney at Allen, Norton & Blue, P.A., the Worklaw® member firm in Winter Park, Fla.
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