FMLA vs. Paid Vacation Days: New Case from the Ninth Circuit

sarah ewingDo you have a FMLA policy that requires an employee to first exhaust paid vacation time that runs concurrently with the FMLA leave? What would you do if the employee elected to use paid vacation but not FMLA leave for qualified FMLA leave? The Ninth Circuit provided the answers in Escriba v. Foster Poultry Farms.

The Employee requested two weeks paid vacation to care for her ailing father. Caring for a sick parent is covered under the FMLA. The Employee did not return to work after the two weeks, continued to care for her father, and failed to contact Human Resources to request additional time off. She was terminated under the Employer’s “three day no-show, no-call rule.” The Employee argued that because she gave her supervisor and superintendent notice of her reason for vacation, she was automatically entitled to FMLA protections. The Employer countered that it was “legally impossible” for the Employee to have FMLA protection as she expressly declined to take FMLA leave to preserve it for a later date.

The court 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. Thus, her termination did not violate FMLA. . It further explained, “Holding that simply referencing an FMLA-qualifying reason triggers FMLA protections would place employers . . . in an untenable situation if the employee’s stated desire is not to take FMLA leave.”

There are good lessons learned from this case. First, if an employee is taking vacation days that qualify as FMLA leave and does not intend to invoke FMLA leave, confirm the waiver of FMLA rights in writing. Second, pause before terminating an employee under FMLA leave. Other rights (ADA, state leave laws and workers’ compensation) may protect the employee from termination.

If you have a question about this case, or the overlap of FMLA, ADA, state leave laws and workers’ compensation, or if you would like a copy of the case, please contact me: sewing@sbhlegal.com