No FMLA Leave, So None of Its Protections

No FMLA Leave, So None of Its Protections J.Mittenzwey

There’s good news for employers regarding Family and Medical Leave Act requests. As attorney Beth V. West explains on The Labor and Employment Law Blog, the Ninth Circuit recently issued a decision that employees who affirmatively decline to take FMLA leave relinquish its protections.

The ruling grew out of an FMLA suit filed by Foster Poultry Farms employee Maria Escriba after she was terminated in 2007 for not complying with the “three day no-show, no-call rule.” She had been on two weeks’ approved leave, which she requested to care for her ailing father in Guatemala. The company argued that she asked for vacation not FMLA leave. Escriba countered that it knew the reason for the request.

The trial court ruled in favor of Foster Poultry and the Ninth U.S. Circuit Court of Appeals affirmed.

West says that while the rules don’t require employees to expressly assert rights under the FMLA and say employers must do their due diligence to clarify the nature of unclear leave requests, the court in this case concluded that there was substantial evidence that Escriba elected not to take FMLA.

West says the ruling was based on specific facts and is not a free pass for employers to rely on employees to clarify that time off is for FMLA leave.

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