Ninth Circuit Upholds Termination of Employee Who Refused FMLA

The Ninth Circuit Court of Appeals held that an employer did not violate the Family and Medical Leave Act (FMLA) when it terminated an employee for failing to return to work following leave that would have been protected under FMLA had the employee not refused it. Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014).

Employee Maria Escriba requested two weeks’ vacation to care for her ill father in Guatemala. Although Foster Farms offered FMLA to Escriba, she explicitly refused to use it for this absence. Escriba was familiar with FMLA and had used it several times in the past. Presumably, Escriba refused FMLA to preserve it for future use. Management approved Escriba’s vacation request and told her to contact HR if she needed additional time. Escriba did not contact Foster Farms again until 16 days after her vacation ended. In the meantime, Foster Farms terminated her for violating its “three day no-show, no-call” policy.

Escriba sued alleging that FMLA protections were automatically triggered when she informed her managers that she needed leave to care for her ill father and that Foster Farms was obligated to designate the time as FMLA regardless of her refusal. The Ninth Circuit said that it would place employers in an “untenable position” if it held that an employee’s mention of an FMLA-qualifying reason was enough to trigger the law’s protections where the employee refused FMLA. The court concluded that employees can affirmatively decline FMLA, even where the underlying reason for taking leave would have invoked protection. In addition, the court said Foster Farms had ample reason to terminate Escriba for violating company policy regardless of the reason for her leave.

This case shows how confusing FMLA can be for employees. Often employees do not realize that “declining FMLA” means their absence is not protected. The FMLA makes employers responsible for determining whether leave qualifies as FMLA. This ruling notwithstanding, the safer course for employers faced with an employee requesting vacation for what could be an FMLA-qualifying reason is to give the initial notice and designate the leave as FMLA pending return of a medical certification form. If the employee refuses FMLA and does not return the form, the employer should send the designation notice telling the employee that his or her leave is not approved for FMLA. This fulfills the employer’s obligation to designate leave and puts the employee on notice that the time is not FMLA-qualifying.

The Ninth Circuit comprises Arizona, California, Idaho, Nevada, Oregon, and Washington.