Employees May Strategically Decline FMLA Leave, the Ninth Circuit Holds

A recent Ninth Circuit ruling allows employees to decline FMLA leave, even when they have an FMLA-qualifying reason for taking the leave. The Ninth Circuit’s holding in Escriba v. Foster Poultry Farms, Inc. gives employees greater flexibility when taking FMLA leave, allowing them to potentially take far longer than the typical 12 weeks of leave afforded by the Act.

Maria Escriba sought a two week vacation to care for her ailing father in Guatemala. While she told her employer about the FMLA-qualifying reason for her leave, she expressly requested that the time away be counted against her vacation days, and not be considered FMLA leave. After two weeks, Escriba failed to return to work, and she was fired.

Escriba argued that this violated the FMLA, as she informed her employer of her FMLA-qualifying reason for leave, and therefore was entitled to the full 12 weeks off provided by the Act. Her employer argued that since she had expressly declined to take FMLA leave, she was not entitled to the full 12 weeks of leave provided by the Act. Escriba responded by arguing that it is legally impossible to decline FMLA leave, as the Act prevents an employee from waiving his rights to it. Once an employer is notified about an FMLA-qualifying reason for leave, Escriba argued, it must grant its employee up to 12 weeks of vacation time.

The Ninth Circuit rejected this argument. It held that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.” While the court noted that the FMLA forbids an employee from waiving his rights under the Act, it does not prevent an employee from declining to use these rights in order to preserve them for the future. The Court nevertheless ruled against the plaintiff, 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 court noted.

While this result hurt Ms. Escriba, it will benefit many other employees who work within the boundaries of the Ninth Circuit. Employers who are within the jurisdiction of that District can no longer require FMLA leave and vacation leave to run concurrently, as an employee has the right to decline to take FMLA leave, exhaust vacation time, and then take the full 12 weeks afforded by the FMLA. Consequently, employee time off can now extend far beyond 12 weeks. It will be interesting to see whether other circuits interpret the FMLA in the same way, and if so, whether this motivates Congress to amend the Act. Stay tuned to The Workplace Report with Ancel Glink for the latest developments.