Employee Can Decline Use of FMLA Qualifying Leave

On February 25, 2014, in Escriba v. Foster Poultry Farms, Inc., the U.S. Court of Appeals for the Ninth Circuit held that an employee who is eligible for Family and Medical Leave Act (“FMLA”) leave can decline to use that leave, even if the employee is qualified for it.


The FMLA allows eligible employees to take to take unpaid, job-protected leave for up to twelve weeks during any twelve month period in order to care for parents with a serious health condition. For FMLA purposes, “parent” is defined  as biological, adoptive, step, or foster parent or an individual who stood in loco parentis to the employee when the employee was a child. “Serious health condition means an illness, injury, impairment, or physical or mental condition that involves: (1) any period of incapacity or treatment connected with inpatient care in a hospital, hospice, or residential medical care facility or (2) any period of incapacity or treatment therefore due to a chronic serious health condition.

The employee does not have to expressly assert rights under the FMLA or even mention the FMLA. The employer has the burden of inquiring further of the employee about whether FMLA leave is being sought by the employee and to obtain the necessary details of the leave to be taken. This obligation suggests that employers must designate FMLA qualifying leave as such and provide the employee with appropriate notices. However, there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA. This issue arose in Escriba v. Foster Poultry Farms, Inc., where an employee was eligible for FMLA leave but declined to use it.

The Case

The plaintiff, Maria Escriba, worked in a processing plant at Foster Poultry Farms, Inc (“Foster Farms”). On November 19, 2007, Ms. Escriba met with her immediate supervisor, Linda Mendoza, to request time off to visit her sick father in Guatemala. Ms. Mendoza approved a two week paid vacation. Later that day, Ms. Escriba requested an additional one to two weeks of time off and Ms. Mendoza declined this request. These two conversations between Ms. Escriba and Ms. Mendoza occurred in English because Ms. Mendoza does not speak Spanish, which was Ms. Escriba’s primary language.

On November 21, Ms. Mendoza followed up with Ms. Escriba and included another supervisor, Alfonso Flores in the conversation, to act as an interpreter. Ms. Mendoza twice asked Ms. Escriba, through Mr. Flores, if she needed more than two weeks in Guatemala to care for her father and Ms. Escriba replied “no” both times. After hearing Ms. Escriba two ‘no’ responses, Ms. Mendoza concluded that she did not intend to take FMLA leave and completed Ms. Escriba’s vacation paperwork, declining the additional time off. She told Ms. Escriba to contact HR if she later decided she wanted to request FMLA leave. Ms. Escriba and Ms. Mendoza dispute the characterization of Ms. Escriba’s request for a two-week period of leave. Ms. Escriba argued that the underlying reason for her leave, was to care for her sick father, and this reason triggered FMLA protection. Ms. Mendoza testified that Ms. Escriba said she was going to visit her sick father and she did not want to take FMLA leave, so her time off was vacation time.

After speaking to Ms. Mendoza, Ms. Escriba contacted the superintendent, Ed Mendoza because he spoke Spanish. She showed him the vacation slip and requested additional time off. Mr. Mendoza also understood that she was merely requesting additional vacation time and indicated that he could not approve it.

Ms. Escriba left for Guatemala on November 23, 2007 and was scheduled to return on December 10, 2007. She remained off work and did not return until sixteen days after her approved vacation had ended.

During this time, she made no effort to contact Foster Farms to seek more time off.

Foster Farms discharged Ms. Escriba under its  “no-show, no-call” rule, which allows for automatic termination for employees who are absent for three work days without notifying the company or seeking time off. Ms. Escriba sued Foster Farms under the FMLA. The jury found for Foster Farms and Ms. Escriba appealed to the 9th Circuit.

Ms. Escriba argued that the underlying reason for her leave automatically triggered FMLA protection, so Foster Farms was required to designate her leave as such. The 9th Circuit concluded that while the text of the FMLA does not expressly state that a worker may defer his or her FMLA leave rights, the Dept. of Labor’s implementing regulations provide that when an employee requests leave for what appears to be an FMLA-qualifying reason, the employer is expected to engage in an informal process to obtain additional information about whether the worker is seeking FMLA leave. The court reasoned that this 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. Therefore, the Court concluded that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.” It reasoned that under certain circumstances, an employee might decline to invoke FMLA leave in order to preserve FMLA rights for future use. For example, the Court noted that under some employer’s policies, as was the case at Foster Farms, initial paid leave runs concurrently with FMLA leave, counting against both an employee’s balance of vacation time and his or her FMLA-protected leave. This allows an employee to exhaust paid vacation first in order to save the FMLA leave for future use.

Ms. Escriba also argued that she did not expressly decline to take FMLA leave. However, the 9th Circuit found that there was substantial evidence that supported the jury’s verdict that Ms. Escriba requested a two week vacation to care for her father, rather than FMLA leave. The evidence included: (1) Ms. Escriba twice answered “no” to her supervisor when asked if she needed more time in Guatemala, (2) the superintendent testified that Ms. Escriba only asked for “vacation time,” not “family leave,” (3) Ms. Escriba knew that only human resources—not her supervisor or superintendent—handled FMLA requests, as she successfully requested similar leaves on 15 prior occasions during her 18 year employment with Foster Farms, and (4) the company policy required FMLA leave to run concurrently with accrued vacation, so Ms. Escriba had an incentive to decline her FMLA leave in order to save it for future use.

Impact on Employers

This case serves as a reminder that employers should train their managers on the proper procedure for obtaining the necessary information to determine whether FMLA leave is being sought by the employee. While Foster Farms was saved in Escriba because Ms. Escriba knew that the proper procedure to request FMLA leave was to go through the HR department, each employer should take reasonable measures to ensure that they clearly explain their procedures to managers. Further, employers should ensure they have clear FMLA policies that are consistently enforced, as in Escriba with Foster Farm’s policy for concurrent FMLA leave and accrued vacation. Employers should also require employees who intend to take FMLA leave to fill out a form and declare in writing their intent to take or decline FMLA leave; this would significantly reduce the likelihood of factual disputes and improve an employer’s chance of obtaining summary judgment, should a lawsuit arise.