Employee May Refuse to Use FMLA Leave Even if Leave Qualifies under FMLA: Ninth Circuit | Practical Law

Employee May Refuse to Use FMLA Leave Even if Leave Qualifies under FMLA: Ninth Circuit | Practical Law

In Escriba v. Foster Poultry Farms, Inc., the US Court of Appeals for the Ninth Circuit affirmed the district court's judgment, after a jury trial, in favor of the employer in an employee's action under the Family and Medical Leave Act of 1993 (FMLA) and its California equivalent, the California Family Rights Act (CFRA). The Ninth Circuit held that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection.

Employee May Refuse to Use FMLA Leave Even if Leave Qualifies under FMLA: Ninth Circuit

by Practical Law Labor & Employment
Published on 03 Mar 2014 • USA (National/Federal)
In Escriba v. Foster Poultry Farms, Inc., the US Court of Appeals for the Ninth Circuit affirmed the district court's judgment, after a jury trial, in favor of the employer in an employee's action under the Family and Medical Leave Act of 1993 (FMLA) and its California equivalent, the California Family Rights Act (CFRA). The Ninth Circuit held that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection.
On February 25, 2014, in Escriba v. Foster Poultry Farms, Inc., the US Court of Appeals for the Ninth Circuit affirmed the district court's judgment, after a jury trial, in favor of the employer in an employee's action under the FMLA and its California equivalent, the California Family Rights Act (CFRA). The Ninth Circuit held that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection. (11-17608, (9th Cir. Feb. 25, 2014).)

Background

Maria Escriba worked for Foster Poultry Farms, Inc. (Foster), a California poultry processing plant, for 18 years. In 2007, Escriba was authorized to take a two-week paid vacation to care for her sick father in Guatemala. However, Escriba failed to return to work after the approved leave. She was subsequently terminated for failure to comply with Foster's "three day no-show, no-call rule." Escriba filed suit under the FMLA and CFRA, arguing that her termination is an unlawful interference with her rights under the FMLA. Foster responds that although Escriba provided an FMLA-qualifying reason for the leave, she explicitly declined to have the leave count as FMLA. Escriba's claims proceeded to jury trial in 2011.
First, both parties moved for judgment as a matter of law. The district court denied Foster's motion and took Escriba's motion under advisement, pending the jury verdict. The jury returned a verdict in favor of Foster. Escriba then renewed her motion and requested a new trial. The district court denied both motions. Escriba (and Foster, appealing a denial of costs) appealed to the Ninth Circuit.

Outcome

The Ninth Circuit affirmed the judgment of the district court, holding that the district court did not err in:
  • Denying the plaintiff's motion for summary judgment. An employee can affirmatively decline to use FMLA leave even if the underlying reason for seeking leave would have invoked FMLA protection.
  • Denying the plaintiff's motion for judgment as a matter of law. Viewing the evidence in the light most favorable to the jury's verdict, there was substantial evidence that the plaintiff elected not to take FMLA leave.
  • Admitting evidence about the plaintiff's prior FMLA leave.
The Ninth Circuit found:
  • Whether the district court erred in holding that Escriba did not intend to take FMLA leave is the dispositive issue in this case.
  • An employer's obligation to inquire whether FMLA leave is being sought strongly suggests that there are circumstances in which an employee could seek time off but not intend to invoke his FMLA rights. A compelling practical reason also supports this conclusion, as an employer who attempts to force FMLA leave on an employee who does not wish to take it could be liable for an interference claim.
  • Escriba's argument that affirmatively declining FMLA leave is tantamount to waiving it, which cannot be done under the FMLA regulations, is incorrect. An affirmative waiver is defined legally as the "voluntary relinquishment.... of a legal right or advantage," and affirmatively declining to exercise a right to preserve it for the future (as Escriba did) is fundamentally different from permanently relinquishing that right.
  • Viewing the evidence in the light most favorable to the jury's verdict, there is substantial evidence that Escriba elected not to take FMLA leave, including:
    • Mendoza (Escriba's supervisor), alongside a Spanish interpreter, twice asked Escriba if she would need more time in Guatemala, and Escriba twice answered no. Mendoza then told Escriba she should visit human resources if she needed more time off;
    • Escriba had successfully requested FMLA leave 15 times. Therefore it can be inferred that if Escriba did intend to request FMLA leave, she would have arranged for it with human resources; and
    • Foster introduced evidence as to why Escriba likely declined FMLA leave, namely that under Foster's leave policy, FMLA leave runs concurrently with any remaining paid vacation days until the paid days are exhausted. Therefore, by exhausting her paid days first, Escriba would have a greater amount of time off for the year.
  • The jury had ample evidence to render a verdict against Escriba due to her noncompliance with Foster's leave policy. Escriba was obligated to comply with the "three day no-show, no-call rule" regardless of the reason for her leave.

Practical Implications

Although this is a rarely litigated issue, to avoid liability in a similar situation employers should distribute and maintain a tightly-drafted FMLA Policy describing exactly how giving notice of leave should work in their particular organization and providing a form or specific method all employees must follow in order to give notice. In addition, employers should ensure that human resources staff and managers recognize and respond appropriately to potential FMLA leave situations. For more information, see FMLA Employee Notice and Employer Response Checklist. For a model policy, see Standard Document, Family and Medical Leave Policy.