This blog post appeared in April 2014.  It has been reviewed and is up to date.

The Family Medical Leave Act (“FMLA”) is a developing and nuanced area of employment law that remains an issue for employees and employers.  The FMLA provides job protection to an eligible employee who takes leave (up to 12 workweeks per year) to care for the employee’s spouse, child or parent with a serious health condition or if such condition makes the employee unable to perform any one or more essential functions of their job. 

In a 2014 decision of the U.S. Court of Appeals titled Escriba v. Foster Poultry Farms, the Ninth Circuit Court in California held that an employee can affirmatively decline to use leave under the FMLA.  However, if the employee affirmatively declines to use FMLA to which he/she would otherwise be entitled, the employer may be shielded from a lawsuit for FMLA interference if it takes an adverse employment action against the employee for violation of its policies.    

In Escriba, an employee declined to use FMLA when she took an extended leave of absence to care for her ill father.  When the employee was terminated for failing to comply with the company’s absence policy, she filed a lawsuit claiming that her termination was an unlawful interference with her FMLA rights.  The Court held that the termination was lawful because the employee had expressly declined to have her time off count as FMLA leave and therefore, was not entitled to job protection.

Maria Escriba worked at a Foster Farms processing plant for 18 years.  On November 19, 2007, she met with her immediate supervisor to request two weeks vacation leave to care for her ailing father in Guatemala.  Her supervisor asked if she needed more time in Guatemala to care for her father, and Escriba responded that she did not.  The supervisor told her that if she later decided to request more than two weeks leave, she would need to visit Human Resources.  Escriba then went to the Foster Farms facility superintendent and told him she was going to Guatemala because her dad was very ill.  She told him she was using two weeks of vacation time and asked him for an additional one or two weeks as a “favor.”  The superintendent told Escriba to send a note or documentation to Human Resources for the extra time.  He did not instruct Escriba regarding her rights and obligations under FMLA and did not take any steps to designate her time off as FMLA.  Escriba never requested any additional time from Human Resources.

Escriba then traveled to Guatemala to care for her father.  While there, she decided that returning to work after two weeks would not be practical but she failed to make contact with her employer to extend her leave.  Sixteen days after she was supposed to return to work, Escriba spoke to her union representative who informed her that she was likely going to be terminated under Foster Farm’s “three day no-show, no-call rule.”  Under this policy, an employee is automatically terminated if absent for three work days without notifying the company or without seeking a leave of absence.  Escriba then sued Foster Farms, claiming that the company interfered with her right to take FMLA leave.

To establish a case of FMLA interference, an employee must establish that 1) he/she was eligible for FMLA protection; 2) the employer was covered by the FMLA; 3) the employee was entitled to leave under the FMLA; 4) the employee provided sufficient notice of intent to take leave; and 5) the employer denied the employee FMLA benefits to which he/she was entitled.  Whether Escriba provided sufficient notice of her intent to take FMLA leave was the dispositive issue. Here, the Court found that Escriba elected not to take FMLA leave after telling her supervisor that she only wanted vacation time and that she did not need additional time off.  She also knew that her supervisor only handled requests for vacation whereas Human Resources had handled her past fifteen requests for FMLA leave.  Moreover, Escriba had intended to take vacation time and not family leave.  Accordingly, Escriba did not express intent to take leave under the FMLA.

Thus, this case demonstrates that an employee cannot have it both ways – the employee cannot decline to use FMLA (even if the leave qualifies for FMLA) and then try to hide behind FMLA protections after the fact.  Accordingly, once an employee declines to use FMLA, the employee assumes the risk of the decision.  Thus, as in this case, if an employee declines FMLA leave, and goes on an unauthorized leave of absence, the employee can be lawfully terminated (consistent with agency policies).  Because the FMLA does not require that an employee expressly ask for “FMLA leave” to fall under its protections, we recommend that the employer should inquire of the employee if it is necessary to determine whether FMLA is being sought by the employee and obtain the necessary details of the leave to be taken.

A 2019 District Court case in Montana titled Sims v. Stillwater Mining Co. reiterates the importance of determining whether the employee has invoked FMLA leave.   In Sims,  Josef Sims requested and was granted FMLA leave from July 20, 2015, to August 1, 2015 from his employer. Upon his return to work, Sims requested additional time off due to his injury and submitted a vacation request form that included a comment stating “for Doctor Apt Regarding FMLA follow up.”  He requested vacation time since he believed he had vacation days remaining, and his supervisor approved the requested leave. However, Sims did not have any vacation days left, and his supervisor terminated him for using a vacation day he did not have. Sims alleged interference with his FMLA rights. The Sims court found that, unlike in Escriba, a jury could reasonably conclude that Sims’ actions did not constitute such a clear declination of his rights. He told his supervisor he was seeking time off due to his shoulder injury and indicated on his leave request form that his time off was “regarding FMLA follow up.” Sims submitted he sought vacation time simply because he thought it was available, and it was an easier process than taking FMLA leave.

Unlike in Escriba, Sim’s supervisor did not inquire further to determine whether he was requesting FMLA leave. All Sims was required to convey was “the qualifying reason for the leave or the need for FMLA leave.” When Sims told his supervisor the reason for his leave, it became his supervisor’s duty to determine whether Sims’ request qualified as FMLA protected leave. The Sims court also found that an employee’s request for paid leave does not “foreclose [] the inference that [he] might be interested in FMLA leave.”

 The court found that summary judgement was not appropriate, as the facts did not undisputedly establish Sims “affirmatively declined FMLA leave” and it was still disputed whether Sims provided sufficient notice of his intention to take FMLA leave and whether the employer fulfilled its duty to determine if FMLA leave was sought.

So, while an employee can affirmatively decline to use FMLA, like in Escriba, it is important that employers properly determine whether FMLA is being sought by the employee.