Court Decision Affirms Employee Right to Decline FMLA Leave
May 6, 2014 by Peter McEntee
The 9th Circuit’s recent Family Medical Leave Act (FMLA) decision in Escriba v. Foster Poultry Farm has generated a fair amount of publicity among individuals and employment law firms. We at Beeson, Tayer and Bodine (BT&B) suggest our readers view this case with a note of caution. The decision addresses an odd fact pattern in which an employee terminated for being AWOL claimed her employer should have applied FMLA to her absence because the employer knew she was absent to take care of a sick relative. Her claim was denied. The facts of this case are both somewhat murky (because contested) and unusual therefore we are urging caution in drawing too much from this decision.
Nonetheless, the court’s decision does support an argument that, where an employee affirmatively declines FMLA leave, an employer is not obligated to apply, indeed may even be prevented from applying, FMLA to an employee’s absence, even where the employer knows the absence could be FMLA-protected.
In Escriba, the plaintiff sued after the company terminated her when she did not return to work, nor contact the company, following two weeks’ approved vacation to care for her sick father. Before commencing her leave, Escriba had requested and been denied an additional two weeks’ unpaid leave. A jury rejected her claim. The jury concluded Escriba knew how to invoke her FMLA rights but instead unequivocally declined to request FMLA leave, and thus held her leave was not protected.
On appeal, the 9th Circuit upheld the verdict. The court, citing FMLA regulations that require an employer to ascertain “whether FMLA leave is being sought,” concluded employees have a right to decline FMLA leave.
This decision should not be read as relieving employers of all obligation to apply FMLA to absences where the employee does not make an express request for medical leave. The 7th Circuit has previously held that an employee may be excused from expressing a need for medical leave in at least two exceptional situations—when circumstances provide the employer with sufficient notice of the need for medical leave or when the employee is incapable of providing such notice. [Byrne v. Avon Prods., Inc.] For example, an employee absent because of a known broken leg need not make an express request for medical leave to qualify for FMLA protection.
The Escriba decision, on the other hand, appears to give employees who have other leaves available, such as paid sick leave, the right to utilize that leave and not FMLA, even where the leave would otherwise qualify as FMLA leave, in order to save their FMLA leave.
BT&B recommends that employees with complicated circumstances such as above, seek clarification of FMLA notification and job retention rights from a lawyer with experience in employment law. For those seeking legal advice in the Oakland and Sacramento area on FMLA or other employee protections, we at BT&B have a background in employment law and will look at a broad set of findings and decisions to provide counsel. Because this finding has some odd aspects we encourage you to look at our legal blog and search FMLA for other cases on rights to leave under the act.
The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.
