Employee Can Decline FMLA Leave

A recent case out of the 9th Circuit Court of Appeals addressed the issue of whether an employee can decline to take FMLA leave even where the underlying reason for taking leave qualifies for FMLA protection. In Escriba v. Foster Poultry Farms, the employee indicated, on multiple occasions, that she wanted to take two weeks of vacation to care for her ailing father.  The employee’s supervisor, using an interpreter, directly inquired whether the employee would need more than two weeks of leave and told the employee that if she needed more leave or could not return on schedule she should talk to human resources.  The employee left for vacation and never called to notify the employer that she needed more time off or when she might be coming back.  When the employee did not return after her vacation, she was terminated pursuant to the employer’s no call/no show policy.  The employee then sued, claiming that the employer interfered with her rights under FMLA by not giving her FMLA leave.

The 9th Circuit found for the employer, and held that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.  And, if an employee declines to take FMLA leave, the employer can treat the employee’s absence just like any other absence under its attendance policy.  The decision also has some interesting language about how far an employer’s obligation to inquire an employee’s need for leave extends. http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/25/11-17608.pdf

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