Keep Your Hands Off My FMLA!

Maria Escriba was a long-term employee of Foster Poultry Farms, Inc.  When her father became ill, she requested a vacation to care for him—she did not request unpaid leave under the Family Medical Leave Act (FMLA).  When Ms. Escriba did not return to work from that vacation on time, she was terminated under the company’s no call/no show policy.  She sued alleging interference with her FMLA rights.

FMLA and California’s similar Family Rights Act, provide for twelve weeks of unpaid leave for an employee’s personal illness, to care for an ill family member, or to bond with a new child.  During this leave, the employee’s job is protected.

The Eastern District Court disagreed with Ms. Escriba’s position that her FMLA rights had been violated, and the Ninth Circuit upheld the District Court’s finding.  An employer cannot force an employee to use her FMLA rights, but, if the employee declines to take the protection, she can be terminated during what could have otherwise been a protected leave.

In Ms. Escriba’s case, the Court found she explicitly did not want to take her FMLA leave, making her vulnerable to the employer’s time and attendance policies. 

The Court found there could be reasons an employee would initially decline FMLA protection and the employer should not simply assume the protection is requested.  For example, an employee may want to use two weeks of accrued vacation and then begin her FMLA protected unpaid leave (resulting in 14 weeks off) rather than have only twelve weeks off (with two weeks paid).

Although the case was a loss for the effected employee, it instructs employers that they cannot force an employee on to FMLA status.  However, if an employee declines FMLA protection, she must be on another employer-excused leave if she wants to protect her future employment.

The case is Escriba v. Foster Poultry Farms, Inc., Ninth Circuit Case Nos. 11-17608 & 12-15380 (decided February 25, 2014).  For more information regarding FMLA, please contact your labor law counsel. 

By Caren Sencer | February 26, 2014

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