Decision: In Escriba v. Foster Poultry Farms, Inc., the US Court of Appeals for the Ninth Circuit ruled that an employee can affirmatively decline to take leave under the Family and Medical Leave Act (FMLA) when seeking time off, even if the underlying reason for the leave request is covered by the FMLA. Escriba claimed that Foster Farms violated the FMLA, the related California Family Rights Act (CFRA) and California public policy when it terminated her, based on a company policy, for failing to report to work without contacting the company after the end of a previously approved vacation period. The plaintiff argued that Foster Farms was required to designate her leave as FMLA and provide her with appropriate notices because, when requesting vacation, she had informed Foster Farms that she needed time off to care for her ailing father. The court concluded that simply mentioning a qualifying reason for leave does not automatically trigger FMLA protections. Here, there was evidence that the employee had specifically requested vacation time and had affirmatively declined to use FMLA leave. The court also ruled that the district court did not err in admitting evidence about the plaintiff’s prior FMLA leave, which was used to demonstrate that she was familiar with how to make a request for FMLA leave.

Impact: This case demonstrates that if an employee expressly declines to exercise available FMLA or CFRA rights, the employee is not automatically entitled to FMLA/CFRA protection for leave that would otherwise qualify under those acts. It is important for employers to ascertain and record whether an employee intends to take or decline FMLA or CFRA leave, as the question of whether the employee expressly declined to take a protected leave will be a fact-specific inquiry.