Employee Held To Choice Not To Invoke FMLA


Sometimes, you can actually take an employee at her word.  Even if she later claims she didn’t mean it.  This happened in the case of Escriba v. Foster Poultry Farms, Inc., where the employee requested two weeks off to care for her father in Guatemala – a reason that would have been covered under the Family and Medical Leave Act, except that the employee said that she didn’t want FMLA leave.

The employee asked only for vacation leave.  The employee’s supervisor asked if she needed more time off, but the employee said that she didn’t.  (Interestingly, the employee’s round trip plane ticket, which she purchased before she asked for the time off, left on November 23 and returned on December 27 – more than a month.  Pretty clearly, this didn’t match up with her two week request.)  The employee was given the time off, but it was not designated as protected FMLA leave.  She was told that if she needed more time, she would have to contact Human Resources.

At the end of the two weeks, the employee did not return to work.  She also failed to call in, and did not request any extension of her leave.  And even though her husband also worked at the company, and she regularly spoke with him, she did not ask him to speak to the company on her behalf.  Sixteen days after the end of her leave, she finally contacted her union rep, who told her that she would likely be terminated under the company’s three-day no-call no-show rule.  And she was.

The employee sued the company, claiming that the company interfered with her FMLA rights.  Specifically, she argued that the company was required to designate her leave as FMLA, even though she had expressly declined to use FMLA.  (Whaaaat?  And by the way, this same employee had used FMLA on fifteen prior occasions, so she certainly knew how to request it!)

Fortunately, the jury didn’t buy it, and neither did the U.S. Court of Appeals for the 9th Circuit.  The Court found that an employee can decline to take FMLA leave and, in fact, an employer could actually be held liable “for forcing FMLA leave on an unwilling employee.”

So the good news for employers is that they don’t have to second-guess an employee’s stated decision.  If the employee says he doesn’t want FMLA, you don’t have to give him FMLA.