The Ninth Circuit (California) held in Escriba v. Foster Poultry Farms, Inc. that an employee can choose to use vacation instead of leave under the Family and Medical Leave Act (“FMLA”) or California Family Rights Act (“CFRA”) for an otherwise FMLA or CFRA-qualifying event.

Maria Escriba worked for Foster Farms’ Turlock processing plant for eighteen years (during which she took multiple FMLA/CFRA leaves). When her father fell ill, she asked her supervisor if she could take two weeks of vacation to go to Guatemala to help care for him. Her supervisor approved the time off; followed up with Escriba to confirm that she did not need more time off to care for her father; and told her that if she needed more time off, she should contact Human Resources. Escriba then asked a facility superintendent for one or two more weeks of leave, in addition to her two weeks of vacation. He replied that he could not grant such leave, but told her to obtain a doctor’s note or consult with Human Resources. She did not do so.

No one notified Escriba of her right to take FMLA/CFRA leave. Escriba then left for Guatemala to care for her father. She was ultimately terminated for violating the company’s “three day no-show, no-call rule” when she failed to return from Guatemala at the end of two weeks without communicating a need for additional time off.

Escriba sued Foster Farms for interference with her rights under the FMLA/CFRA, and the jury found in the company’s favor. After a series of post-trial motions, both sides appealed. The court found in Foster Farms’ favor and held that (1) employees can decline to use FMLA/CFRA leave even if the underlying reason for the leave is FMLA/CFRA-qualifying and protected by those laws, and (2) if they elect to use vacation instead of FMLA/CFRA leave, they cannot seek protection under those statutes. The court noted that although the FMLA does not state whether an employee may decline to exercise his or her FMLA rights, the interpretive Department of Labor regulations suggest that there are “circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA.” The court pointed out that if employers were required to designate leave under FMLA/CFRA regardless of the wishes of the employee, employers could be exposed to legal risk for forcing such leave on the employees in the form of an interference claim.