Family Medical Leave Act does not Provide Protections if FMLA Leave is not Requested

The federal Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) are intended to provide protections for employees who must take time off in order to care for sick family members. However, these protections do not apply to every situation and the employee may not benefit from the protections of these important laws when he or she has expressly declined the leave at the time of the absence.

In the case of Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9^th Cir. 2014), the plaintiff brought suit against her former employer based on her termination after she was gone for more than one month caring for her elderly father out of the country. Maria Escriba was employed by defendant Foster Poultry Farms when her father became ill in Guatemala. Escriba requested two weeks of vacation time in order to travel to Guatemala to visit her father. At the time the paid vacation time was approved, Escriba requested an additional period of one to two weeks off, unpaid. This request was denied, but Escriba’s supervisor asked her if she needed more time to take care of her father. Escriba responded that she did not need extra time to provide care to her father. Escriba then placed a request for the additional unpaid time off with the superintendent of the processing plant. The request was not based on a need for additional time to provide care for a sick family member, but rather as vacation time above that of the paid two weeks of approved time off. Escriba’s request was denied.

Escriba went on the approved two-week vacation, but then did not come back to the processing plant for 16 more days, without communication with the plant. In accordance with its policy of terminating employees after three days of unexcused absence without notification, Foster Poultry Farms terminated Escriba’s employment.

After her termination, Escriba brought suit against Foster Poultry Farms under FMLA and CFRA. The jury found in favor of Foster Poultry Farms. Escriba filed an appeal to the Ninth Circuit Court of Appeal.

Escriba based her argument on the premise that her care for her sick father was the reason for her leave, which triggered the protections of FMLA and CFRA. Escriba asserted that the defendant was mandated to qualify her time off as FMLA leave, even though she had told them that she did not need the additional time to care for her father. This meant that her former employer was required to provide her with the notifications that were proscribed under FMLA. The Ninth Circuit was not persuaded by these arguments and upheld the finding of the jury in favor of defendant. The Ninth Circuit asserted that an employer must take steps to determine if FMLA leave is being sought, but that defendant complied with this requirement. See 29 C.F.R. § 825.302(c).

The Ninth Circuit determined that an employee has the right to decline to use FMLA leave, even if he or she is qualified to take the leave, and that if an employee chooses not to avail herself of the protections of the Act at the time of the absence, then she cannot draw upon its protections after termination of her employment because of the time-off. The Court determined that there might be legitimate reasons for an employee to refuse to use the leave, such as saving it for another anticipated situation. In addition, there could be a practical reason to decline the leave because accrued vacation time must be used concurrently with the FMLA leave. Defendant required this. The Court found that an employee might want to use up paid vacation before taking the leave in order to maximize the time that he or she could take and still have a job.

The Ninth Circuit affirmed the reasoning of the jury, which held that:

• Escriba twice denied needing additional time to care for her father in Guatemala;
• Escriba specifically requested vacation rather than family leave;
• Escriba was aware that human resources handled all requests for family leave as she had requested it multiple times in the past; and
• Foster Poultry Farms had the policy of having accrued paid vacation time run concurrently with FMLA leave, which provided an incentive for Escriba to
• take vacation time rather than requesting FMLA leave.

The employer ultimately prevailed in this case, but it is a cautionary tale that should encourage employers to document carefully when an employee declines to take FMLA leave to which he or she is entitled. The holding of this case should be viewed under the circumstances of an employee taking leave to care for a sick relative, rather than a more expansive view of an employee taking time off to deal with his or her own medical condition.

Employment issues can arise quickly and may lead to significant consequences for employees and employers. In order to discuss this or other employment matters, contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside, and Los Angeles. Call (949) 375-4734.