Ninth Circuit Rules–Employee Can Decline FMLA Leave

Employers are all aware that employees do not have to specifically ask for FMLA leave in order for it to be available. However, what if an employee specifically asks that leave not be counted as FMLA leave? In a recent decision, the Ninth Circuit ruled that an employee can affirmatively decline FMLA leave, even where the reason for an absence would entitle him or her to FMLA leave. Escriba v. Foster Poultry Farms, No. 11-17608; 12-15320.

Escriba worked for Foster Poultry Farms at one of its processing plants for eighteen years. In 2007, she was terminated for failing to comply with the “three day no-show, no-call rule” when she failed to return to work after a period of approved leave taken to care for her sick father in Guatemala. Escriba then filed suit against her employer, claiming violations of the FMLA and its California equivalent.

After finding out her father was ill, Escriba met with her supervisor and asked for approval of a two week vacation to take care of her father. Escriba claims that after this time was approved, she also asked her supervisor, “[p]lease one week or two week free for me,” which she claims meant that she was requesting unpaid leave in addition to the two week paid vacation. However, in a follow up conversation in which the supervisor asked another employee to act as an interpreter, Escriba stated that she did not need more than two weeks of vacation. Escriba also admitted during cross examination that she requested the leave from the supervisor and not the human resources department because she meant to ask for vacation and not for family leave.

Escriba claims that she subsequently went to the facility superintendent and advised him that she was going to Guatemala because her father was very ill and asked whether he could give her more leave. She claims that he told her he could not. According to the superintendent, Escriba was only asking about vacation leave and asked what she should do if she could not return at the end of the two weeks. He stated that he told her to fax or send a note of some kind to the human resources office.

Escriba did not return at the end of the two weeks, yet did not communicate to her employer that she would be unable to return. Further, even though her husband also worked for Foster Poultry Farms, at trial, she confirmed that she did not ask him to contact human resources. Escriba did not speak to anyone at Foster Poultry Farms about extending her leave until sixteen days after she was supposed to return to work, at which time she spoke with her union representative about the matter.

Along with its “three day no-show, no-call rule,” Foster Poultry Farms also had a policy that requires an employee who requests FMLA leave to first exhaust paid vacation time. According to Foster Poultry Farms, an employee cannot be forced to take FMLA if he or she chooses to use vacation instead as that would be reducing a benefit he or she has.
Escriba unsuccessfully moved for summary judgment on her claims. The matter proceeded to trial and the jury returned a verdict in favor of the employer. One of the grounds for appeal was Escriba’s claim that she should have been granted summary judgment on her FMLA interference claim as there is no dispute that she told her supervisor and the superintendent that she needed time off to care for her ill father. Escriba claimed that Foster Poultry Farms was required to designate her leave as FMLA leave and provide her with a notice of her FMLA leave, regardless of whether she expressly declined this leave. The Ninth Circuit agreed there was no such requirement.

As the court explained, the regulations provide that the employer does not have to expressly assert rights under the FMLA or even reference the FMLA, but that the employer should inquire further of the employee if necessary to have more information about whether FMLA leave is sought and to obtain the necessary details about the leave. 29 C.F.R. § 825.302(c). The Ninth Circuit concluded that “[a]n employer’s obligation to ascertain ‘whether FMLA leave is being sought’ strongly suggest that there are circumstances in which an employee might seek time off but not intend to exercise his or her rights under the FMLA.” Escriba, p. 14. Further, “[h]olding that simply referencing an FMLA-qualifying reason triggers FMLA protections would place employers like Foster Farms in an untenable situation if the employee’s stated desire is not to take FMLA leave,” as the employer could then face liability for “forcing FMLA leave on an unwilling employee.” Id. Thus, an employee is able to affirmatively decline FMLA leave even if the reason for his or her absence would have invoked protection under the FMLA.