Ninth Circuit Rejects Suit Brought by Worker Who Expressly Declined to Take FMLA Leave

Escriba v. Foster Poultry Farms, Nos. 11-17608 and 12-15320 (February 25, 2014): In a recent decision, the Ninth Circuit Court of Appeals ruled that an employee can affirmatively decline to use leave under the Family and Medical Leave Act (FMLA), even if the underlying reason for taking the leave could have triggered FMLA protection. As a result, the court held that the employer in this case did not violate the law when it fired the employee for failing to return to work from a previously approved two-week vacation.

Maria Escriba had worked for 18 years at a chicken processing plant for Foster Poultry Farms in Turlock, California. In 2007, she requested time off to travel to Guatemala to care for her ailing father. Her supervisor, Linda Mendoza, approved two weeks of paid vacation. Escriba requested an additional one to two weeks of unpaid leave. Mendoza initially declined this request but followed up with Escriba two days later. Using one of the other supervisors as a Spanish interpreter, Mendoza twice asked Escriba if she needed more time than two weeks in Guatemala to care for her father. Escriba replied, “no,” both times. Mendoza told Escriba to contact the human resources department if she wanted additional leave—a procedure with which Escriba was familiar since she had requested FMLA leave 15 times in the past.

Escriba did not return to work or contact Foster Farms at the end of her two-week leave. She was fired for failing to comply with the company’s “three day no-show, no-call” policy. Escriba sued Foster Farms, arguing that because she told her supervisor that she was taking the leave to care for her ill father, the company should have automatically placed her on FMLA leave. The case went to trial and the jury found in favor of Foster Farms. Escriba appealed the verdict to the Ninth Circuit.

The Ninth Circuit agreed with the trial court, holding that an employee can affirmatively decline FMLA leave. The court found that even though the statute does not specifically address this issue, the FMLA regulations require employers to ascertain “whether FMLA leave is being sought”—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 highlighted the problem that employers would face if they had to place an employee on FMLA leave despite the employee’s wishes.

According to a shareholder in the Los Angeles office of Ogletree Deakins, “This case does not speak to what happens when there is an ambiguous request for FMLA. Its holding is limited to situations where an employee has unequivocally and expressly refused to exercise his or her right to take FMLA leave.”

Bodnar adds, “The practical take-aways for employers are: (1) it is important to have a clear FMLA policy that makes clear when vacation will run concurrently with FMLA; (2) it is important to train supervisors and managers on the policy; and (3) getting an acknowledgement, in writing, from the employee when an employee wishes to decline his or her right to FMLA leave is probably the best way to establish that the employee understood his or her rights and expressly declined FMLA. As the factual disputes in this case laid bare, when an employee’s primary language is not English it is important that the policies and the waiver are written in a language that the employee understands.”