Under the Ninth Circuit’s decision in Escriba v. Foster Poultry FarmsInc., employees may elect to affirmatively decline FMLA leave designation for their time off. The case involved an employee who requested time off for a FMLA-qualifying reason, to care for her ill father. The employee, however, requested that such time off be designated as vacation leave, rather than FMLA leave. When the employee failed to return to work after the expiration of her vacation leave, her employer terminated her employment. The employee subsequently filed suit, claiming that her employer violated FMLA, and the California Family Rights Act (“CFRA”), by terminating her employment because it was required to designate her leave as FMLA leave, regardless of whether she expressly declined to designate her requested absence as FMLA leave.

On appeal, the Ninth Circuit noted that the Labor Department’s regulations state that when an employee requests a leave for what appears to be a FMLA-qualifying reason, the employer is obligated to engage in an informal process to obtain additional information.

According to the Ninth Circuit, this obligation to ascertain whether FMLA leave is being sought suggests that there are circumstances where an employee might seek time off but intend not to exercise his or her rights under FMLA, for example, to save the 12-week FMLA period for later use in the year. Accordingly, the Ninth Circuit held an employee can affirmatively decline to use FMLA leave and use vacation time off instead, even if the underlying reason for seeking the leave would have invoked FMLA protection.

PLANNING TIP

We expect this issue to develop in other Circuits or with further case law. Employers should be aware that, at least in the Ninth Circuit, employees can decline FMLA / CFRA leave in order to use accrued vacation or sick time first, and, as a practical matter, potentially extend their protected time off by first using such paid time off benefits and saving their FMLA/CFRA leave time for later in the year.