The U.S. Court of Appeals for the Ninth Circuit recently held that employees can choose not to use FMLA leave, even if the reason for seeking leave would be protected under the Act.  In Escriba v. Foster Poultry Farms, the court ruled in favor of Foster Poultry, finding that the employer did not violate the FMLA when it terminated a long-term employee, Maria Escriba, after she did not show up for work or call within three days of her expected return to work following an approved vacation.

Escriba had requested, and the company had approved, two weeks’ vacation to travel to Guatemala to care for her sick father.  Ultimately, Escriba did not return or otherwise contact Foster Poultry for approximately one month, and the company terminated her employment based on its three-day no-show, no-call rule for union workers.  The company presented evidence showing that Escriba did not wish to use available FMLA leave, evidently intending to preserve that leave for a future occasion.

Escriba argued that the company was required to designate her leave as FMLA-protected, and to provide her with notice of her FMLA rights as soon as the company learned of the reason for her leave, regardless of whether she had expressly declined FMLA designation.  In other words, Escriba argued that an employee who takes time off of work and is able to use FMLA leave for the absence may not decline to use such leave.  Foster Poultry argued that such a rule would place employers in a seemingly impossible position.  Under the bright-line rule suggested by Escriba, employers would have to count all employee leave as FMLA leave whenever an employee made a request for leave based on a qualifying reason, even if the employee did not wish to take FMLA leave.  At the same time, the company argued, this interpretation of the statute would render an employer liable for FMLA interference by forcing employees to use the protected leave when they did not wish to do so.  

In its decision, the court disagreed with Escriba and upheld the district court’s judgment in favor of her employer.  The court reasoned that an employer’s obligation to ascertain whether FMLA leave is being sought suggests that there are circumstances in which an employee might seek time off, but intend not to exercise his or her FMLA rights.  The court also agreed with Foster Poultry that if FMLA protections were automatically triggered by a reference to an FMLA-qualifying reason for leave, employers could be open to liability for forcing FMLA leave on unwilling employees.  

The Foster Poultry decision serves as an important reminder for employers to have clear FMLA leave policies, and effectively train managers and human resources representatives on implementing those policies.