Employee May Be Able To Waive FMLA Entitlement

            A recent decision from the U.S. Court of Appeals for the Ninth Circuit has allowed an employee who qualifies for FMLA leave the option to reserve that leave for future use. 

            In Escriba v. Forster Poultry Farms, 2014 DJDAR 2245 (9^th Cir. February 25, 2014), the Ninth Circuit addressed the rare factual scenario where an employee who is entitled to FMLA leave took time off as vacation, but expressly declined to have the time count against her FMLA entitlement so she would have the time available in the future.  Plaintiff Maria Escriba ("Escriba") was a long-term employee of Foster Poultry who had taken multiple FMLA leaves in the past.  She was aware that requests for vacation were handled by her Supervisors, while requests for FMLA leave were handled by Human Resources.  When her father became ill, she needed to travel to Guatemala to help take care of him.  Her Supervisor granted her a two-week vacation.  In broken English, Escriba asked for an additional two weeks.  To avoid a miscommunication, her Supervisor arranged for a translator.  On two separate occasions, Escriba answered "No" when asked whether she needed additional time off to care for her father.  She then spoke with a Superintendent.  She explained that she would be on vacation for two weeks and needed an additional one to two weeks of time off.  The Superintendent declined the extra time off since Escriba was asking for additional vacation, not family leave. 

            When she arrived in Guatemala, Escriba realized that she needed more than two weeks to care for her father.  Nevertheless, she made no effort to communicate with Foster Poultry regarding a need to exercise FMLA leave or to communicate her inability to return to work when her vacation ended.  It is possible that she remained quiet due to a Foster Poultry policy which provided that employees who exercise their right to FMLA must use their accrued vacation while on FMLA.  In essence, the vacation and FMLA leave run concurrently for so long as the employee had unused accrued vacation.   It appears that Escriba wanted it both ways so she wouldn't have to use up her FMLA entitlement while she was "on vacation" attending to her ill father, thereby potentially increasing the amount of time off she would be permitted. By refusing to designate the time off as FMLA, she was in effect bypassing the company policy that the vacation and FMLA run concurrently.  

            Sixteen days after her vacation ended, Escriba returned to work.  Since she did not bother to call in, she was terminated for violating a no-call, no-show policy.  Though Escriba initially didn't want the leave to be counted against her annual FMLA allotment of time, she had a sudden change of heart when she was fired.  To her employer's amazement, Escriba then filed suit, alleging FMLA interference. 

            She lost at the trial level, but filed an appeal. On appeal, Escriba argued that the underlying reason for her leave - caring for her sick father - triggered FMLA protection.  Thus, even though she declined FMLA leave, she claimed that her employer was required to designate her leave as FMLA protected and to provide her with the appropriate notices, which they had not done because she expressly declined to have the time off count against her annual FMLA allotment of time off.   In essence, she argued that it is legally impossible for an employee to decline FMLA leave if the underlying reason qualifies for FMLA protection and the employer knows it. 

            The Ninth Circuit disagreed and acknowledged the possibility that an employee may elect to preserve FMLA leave for future use. 

            An element of an FMLA-"interference" claim is the employee's intent to take FMLA leave.  When an employee who qualifies for FMLA leave declines to designate his or her leave as protected, we recommend (and the Regulations require) that the leave be designated as FMLA and the employee be afforded all of the associated rights and protections (including job restoration when the leave is over). However, this case also implies that the employer cannot force the employee to count the time off as FMLA if the employee otherwise does not want the leave designated as such.  Therefore, if the employee insists that the time off is not for an FMLA purpose or otherwise doesn't wish to take the time off as FMLA, yet the underlying reason for leave qualifies under the FMLA, then a clearly worded WAIVER document should be prepared to make a record of the employee's intention in declaring that the leave not be counted against the FMLA time. That simple document may avoid the confusion which the Ninth Circuit was asked to resolve in this case.