Under the Ninth Circuit’s recent holding in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014), many employees now have greater flexibility to extend family and medical leave beyond the typical 12-week limit under the Family and Medical Leave Act (“FMLA”). While the Escriba court’s holding was intended to benefit the employer in that case, Foster Farms, its impact on other employers may have the opposite effect.

Maria Escriba sought two weeks of leave from her employment with Foster Farms in order to care for her ailing father in Guatemala. Although Ms. Escriba informed her supervisors of the FMLA-qualifying reason for the leave, she expressly requested that the time be deemed as vacation leave, rather than family leave. When Ms. Escriba failed to return to work after the expiration of her vacation leave, Foster Farms terminated her employment. 

Ms. Escriba filed suit, alleging that Foster Farms violated the FMLA and the substantively identical California Family Rights Act by terminating her employment. Specifically, she claimed that Foster Farms was required to designate her leave as FMLA leave, regardless of whether she declined FMLA leave, arguing that an employee cannot waive her rights under the FMLA.

On appeal, the Ninth Circuit rejected Ms. Escriba’s arguments and held that her leave was not protected under the FMLA.  The court noted that once an employee informs an employer of her desire to take leave for an FMLA-qualifying reason, the “employer will be expected to obtain any additional required information through informal means.” 29 C.F.R. § 825.303(b). While the employee need not mention the FMLA or expressly assert his or her rights thereunder, the employer “should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee . . ..” 29 C.F.R. § 825.302(c) (emphasis added). The court attached great significance to the foregoing underlined language, holding that the verbiage “strongly suggests that there are circumstances in which an employee might seek time off but intend not to exercise his or rights under the FMLA.” Escriba, 743 F.3d at 1244. In so holding, the court cited an employer-friendly reason: “Holding that simply referencing an FMLA-qualifying reason triggers FMLA protections would place employers like Foster Farms in an untenable situation if the employee’s stated desire is not to take FMLA leave.” Id. (emphasis in original). Thus, the court concluded that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.” Id.

The court rejected Ms. Escriba’s waiver argument. Although the FMLA regulations prohibit an employee’ waiver of her rights under the FMLA, the court held that Ms. Escriba was not, in fact, relinquishing her right to take FMLA leave. Rather, Ms. Escriba “affirmatively declined to exercise her FMLA rights in order to preserve her leave for future use.” Id. (emphasis in original).

The take-away from Escriba for employers is the fact that an employee has the right to affirmatively decline to take FMLA leave and to instead choose to first exhaust her accrued vacation leave, paid time off, or other leave provided by the employer before taking her 12 weeks of FMLA leave. This is so even where the employer requires that an employee taking FMLA leave must use her accrued paid leave during her FMLA absence. Under the court’s reasoning, an employee’s family or medical leave could potentially extend far beyond the usual 12 week limit.