Why it matters: Can an employee affirmatively reject the use of Family and Medical Leave Act leave even where her reason for time off triggered statutory coverage? Yes, the Ninth U.S. Circuit Court of Appeals recently concluded, holding that circumstances can exist where an employee may seek time off but intend not to exercise his or her FMLA rights in order to save the protected leave for a later date. The decision alleviates employers from what could have been a significant burden had the court reached a contrary holding, making the refusal to exercise FMLA rights “legally impossible.”

Detailed Discussion

Maria Escriba worked at a Foster Poultry Farms processing plant in California. An 18-year employee, she met with her immediate supervisor to request time off to care for her sick father who lived in Guatemala.

Escriba claimed that she asked for time off, stating, “Linda, please for me, Linda, for me, vacation” because her “father is no good.” The supervisor agreed to two weeks of vacation. Escriba later said she asked for an additional week or two of unpaid leave that was rejected.

With an interpreter, Escriba again spoke with her supervisor, who confirmed she was only taking two weeks of leave as vacation time. Escriba was not instructed on her rights and obligations under the FMLA or Foster Farms did not take any steps to designate her time off as FMLA leave. Escriba left for Guatemala, where she stayed longer than her two weeks of vacation. She was terminated for failing to comply with Foster Farms’ “three day no-show, no-call rule.” She then filed suit under the FMLA and its California equivalent.

After a six-day trial, a jury returned a verdict in favor of Foster Farms.

Escriba appealed. She argued that by informing her supervisors of her reason for taking leave, her FMLA rights were triggered and she was automatically entitled to the statutory protections. Foster Farms was required to designate her leave as FMLA-protected, she told the Ninth Circuit, regardless of whether she expressly declined such a designation.

The federal appellate panel rejected Escriba’s position that refusing to exercise FMLA rights is “legally impossible.” Although the statute itself does not state whether an employee may defer the exercise of FMLA rights, regulations from the Department of Labor offered some guidance to the court.

Employers must ascertain “whether FMLA leave is being sought,” according to the DOL, which “strongly suggests 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 said.

“Holding 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,” the panel wrote. “The employer could find itself open to liability for forcing FMLA leave on the unwilling employee. We thus conclude that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”

Affirmatively declining the use of FMLA is not the same as waiving it, the Ninth Circuit added. An employee does not relinquish her rights, but preserves them for the future.

Turning to Escriba, the panel affirmed the jury’s verdict for Foster Farms, based on “substantial evidence” that Escriba elected not to take FMLA leave. In addition to specifically requesting vacation multiple times, she was no stranger to requesting FMLA leave, having requested it on 15 prior occasions. “A reasonable inference from this evidence is that, if Escriba had desired to take FMLA leave, she would have arranged for such leave,” the court said.

And Foster Farms provided evidence as to why Escriba could have elected not to take her leave. By taking vacation first, Escriba satisfied the company’s policy that paid vacation must be exhausted before using FMLA leave, essentially adding two more weeks of protected leave.

To read the opinion in Escriba v. Foster Poultry Farms, click here.