​In a decision filed on February 25, 2014, the United States Court of Appeals for the Ninth Circuit ruled that employees may affirmatively decline to use leave under the Family and Medical Leave Act (FMLA), even if the underlying reason for seeking leave would have invoked FMLA protection.

In Escriba v. Foster Poultry Farms, Inc., an employee filed suit under the FMLA after she was terminated for failing to comply with the company’s “three day no-show, no-call rule” after the end of an approved period of leave, which she took to care for her ailing father in Guatemala.

The plaintiff argued that she should prevail on her FMLA claim in spite of the fact that she declined leave under the FMLA for her trip to Guatemala.  The court rejected her argument, holding that an employee may decline FMLA leave even if the requested leave is for an FMLA qualifying reason.  The court reasoned that: (1) the FMLA does not expressly state whether an employee may defer exercise of FMLA rights under the statute and (2) the regulatory language which states that an “employee need not expressly assert rights under the FMLA or even mention the FMLA” but the employer should “inquire further of the employee if it is necessary to have more information about whether FMLA is being sought” suggests that there are circumstances in which an employee might seek time off but not intend to exercise his or her rights under the FMLA.

The court acknowledged that such an approach would allow an employee to decline to take FMLA leave and subsequently request it at a later date so the employee would exhaust his or her paid vacation, after which the employee would still have the full 12 weeks of FMLA leave remaining.  Specifically, the court noted: “even if [plaintiff] purposefully deferred asking for FMLA leave until after the expiration of her paid leave, she would have had two more weeks protected leave than if she had initially requested family leave.” 

The Ninth Circuit’s holding in Escriba is contrary to the common understanding that employers may designate an employee’s leave as FMLA leave regardless of the employee’s intention – so long as the requested leave is for an FMLA-qualifying reason.

Even though the employee’s decision to decline FMLA leave worked against her in the Escriba case, the court’s decision might open the door to claims that an employer’s decision to designate FMLA leave against an employee’s wishes interferes with the employee’s rights under the FMLA.  Notably, the Escriba decision is not binding on employers outside the Ninth Circuit, which encompasses several states and territories including, California, Arizona, Washington, Oregon, Nevada, Idaho, Montana and Alaska.  However, until this issue is resolved in the other circuits, employers are advised to consult with employment counsel when faced with an employee who attempts to avoid using FMLA leave for a qualifying event.