If an employee does not wish to take leave under the Family and Medical Leave Act but continues to be absent from work, then he or she must have a reason for the absence that is acceptable under the employer’s policies, otherwise termination is justified. This assertion by the 9th U.S. Circuit Court of Appeals affirmed a lower court ruling. The case is Escriba v. Foster Poultry Farms, Inc., Nos. 11-17608, 12-15320 (9th Cir., Feb. 25, 2014).
Fact of the Case
Maria Escriba worked in a Foster Poultry Farms, Inc. processing plant in Turlock, Cal. for 18 years. She lost her job in 2007 for failing to comply with the company’s “three day no-show, no-call rule” after the end of a previously approved leave, which she took to care for her ailing father in Guatemala. Escriba subsequently filed suit in the U.S. District Court for the Eastern District of California, claiming FMLA interference and a violation of the federal leave law’s California equivalent.
Escriba contended that Foster Farms was required to designate her leave as FMLA-protected and to provide her with a notice of her rights under FMLA regardless of whether she expressly declined such a designation. She raised similar arguments in both her pretrial motion for summary judgment and in her pre-verdict motion for judgment as a matter of law.
Foster Farms responded that, although Escriba provided an FMLA-qualifying reason for taking leave, she explicitly declined to have her time off count as FMLA leave. The district court characterized the case as a classic “he said, she said” matter focused on what Escriba told her supervisors.
The district court denied Escriba’s motion for summary judgment because it found Foster Farms had cited evidence that the company gave Escriba the option “to exercise her right to take FMLA leave, but she unequivocally refused to exercise that right.”
The case proceeded to trial in 2011 and Foster Farms convinced the jury that Escriba affirmatively declined to exercise her FMLA rights in order to preserve her leave for future use. The jury returned a verdict in favor of Foster Farms and Escriba appealed the decision.
Appeals Court Weighs in
The 9th Circuit found that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. See, for example, Ridings v. Riverside Med. Ctr., 537 F.3d 755, 769 n.3 (7th Cir. 2008).
The jury had ample evidence to render a verdict against Escriba, the 9th Circuit found, because of her noncompliance with Foster Farms’s “three day no-show, no-call rule.” Escriba, the circuit court said, was obligated to comply with company policy regardless of her reason for taking leave.
“Holding that simply referencing an FMLA-qualifying reason triggers FMLA protections would place employers like Foster Farms in an untenable situation if the employee’s stated desire is not to take FMLA leave,” wrote the Honorable Ronald Lee Gilman, senior circuit judge for the 6th U.S. Circuit Court of Appeals, sitting by designation.
Employer Takeaways
Escriba’s argument rested on the erroneous assertion that simply mentioning an FMLA-qualifying reason for an absence triggers all the Act’s protections. The 9th Circuit found that nothing in FMLA stops an employee from deferring the exercise of his or her FMLA rights. The preservation of future FMLA leave is a compelling and practical reason why an employee might wish to do so.
FMLA permits an eligible employee to choose to substitute accrued paid leave for FMLA leave (29 C.F.R. §825.207(a)) (see ¶310 in the Handbook). Additionally, employers may require an employee to substitute accrued paid leave for unpaid FMLA leave. The paid leave provided by the employer, and accrued based on established policies of the employer, will run concurrently with the unpaid FMLA leave.
For example, an employer might require an employee who takes 12 weeks of unpaid FMLA leave to use three weeks of available vacation leave at the outset of the time off, resulting in three weeks of paid leave and nine weeks of unpaid leave.
Does the 9th Circuit’s decision now mean that an employee can refuse to take paid leave and FMLA leave concurrently, even when an employer requires it? “Probably not, but expect to see this argument crop up in future cases,” says attorney Matthew M. Morrison of Sherman & Howard L.L.C.
For the complete article, “When FMLA Leave Is Declined, Attendance Policy Violation Justifies Firing, 9th Circuit Affirms,” please visit the Thompson HR Compliance Expert site.