Designation Of FMLA Leave – An Employee’s Choice?

by Ruth Horvatich

Horvatich, Ruth
(402) 341-3070

Under the Family and Medical Leave Act (FMLA), employers may require that FMLA leave run concurrently with any paid leave provided under the employers’ policies, such as vacation leave. But, if an employer allows an employee to reject FMLA designation and use accrued vacation for an FMLA qualifying absence, does the employee lose the FMLA’s protections for that leave? “Yes,” according to a recent decision in the Ninth Circuit.

In Escriba v. Foster Poultry Farms, the Plaintiff, an 18-year employee, requested two weeks’ vacation to care for her ailing father in Guatemala. This request was granted. The employee then requested two weeks of unpaid leave in addition to the two weeks of paid vacation; however her supervisor rejected this request. The employee’s supervisor later asked the employee twice if she needed more time than two weeks in Guatemala to care for her ill father and the employee replied “no,” both times. The supervisor completed the Plaintiff’s vacation paperwork and told her to contact human resources if she later decided she needed more time. The employee left for Guatemala and did not return as scheduled two weeks later and did not contact her supervisors. She was ultimately terminated for violating the Company’s three day no-call, no-show rule.

The employee sued the Company, alleging that it violated the FMLA by terminating her employment. The lower court denied summary judgment for the employee and a jury returned a verdict for the Company. On appeal, the employee argued that her requests for time off to care for her father automatically entitled her to FMLA leave and that the Company had to designate her leave as FMLA-protected, regardless of her specific request for vacation time. The Ninth Circuit rejected this argument and concluded that an employee can decide not to use FMLA leave, even if the underlying reason would have qualified for protection under the statute. The court explained that otherwise, the “employer could find itself open to liability for forcing FMLA leave on the unwilling employee.” Should an employee choose to reject FMLA coverage, however, they will lose the protections of the FMLA.

It is important to note that this decision only held that an employee may reject their right to use FMLA leave. It did not hold that an employer is required to allow employees to do so. In this case, the Company’s policy required paid leave to run concurrently with unpaid leave under the FMLA. However, the Company took the position that it could not force the employee to take FMLA leave if they requested to only use vacation time. Employers that designate all qualifying leave as FMLA leave and require it to run concurrently with available paid leave may continue to do so. In light of this decision, if employers allow employees to choose whether leave will be designated as FMLA leave, employers should still communicate to the employee their rights under the FMLA and inform them that they will lose the protections of the FMLA if they choose to not designate the leave as FMLA leave.

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