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Employees May Choose to Use Vacation Leave over FMLA or CFRA

Posted by Eric Kingsley | Apr 23, 2014 | 0 Comments

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Employees May Choose to Use Vacation Instead of FMLA or CFRA Leave for Medical Absences

The Ninth Circuit (California) recently held in Escriba v. Foster Poultry Farms, Inc. that an employee can choose to use vacation instead of leave under the Family and Medical Leave Act (FMLA) or California Family Rights Act (“CFRA”) for an otherwise FMLA or CFRA-qualifying event.

The employee, Maria Escriba, worked for Foster Farms' processing plant in Turlock, California for eighteen years. Upon hearing her father in Guatemala was ill, she requested and received permission from her supervisor to take two weeks of vacation leave to go to Guatemala to provide care. Later, Ms. Escriba's supervisor suggested that if she needed more time off she needed to contact the Human Resources department. Escriba did not contact HR, but proceeded to ask a facility superintendent for one or two more weeks of leave, in addition to her two weeks of vacation. He replied that he could not grant such leave, but told her to obtain a doctor's note or consult with Human Resources. Again, she failed to do so.

During the course of these events, no one notified Escriba of her right to take FMLA/CFRA leave (note:  Escriba had successfully requested FMLA leave on fifteen prior occasions) and she left for Guatemala to care for her father. She was ultimately terminated for violating the company's “three day no-show, no-call rule” when she failed to return from Guatemala at the end of two weeks without communicating a need for additional time off.

Escriba sued Foster Farms for interference with her rights under the FMLA/CFRA, alleging violations of the FMLA, 29 U.S.C. § 2601 et seq., the California Family Rights Act (CFRA), Cal. Gov't Code § 12945.2 et seq., and California public policy. The jury found in the company's favor. Following a series of post-trial motions and appeals, the court found in Foster Farms' favor and held that (1) employees can decline to use FMLA/CFRA leave even if the underlying reason for the leave is FMLA/CFRA-qualifying and protected by those laws, and (2) if they elect to use vacation instead of FMLA/CFRA leave, they cannot seek protection under those statutes.

The court noted that although the FMLA does not state whether an employee may decline to exercise his or her FMLA rights, the interpretive Department of Labor regulations suggest that there are “circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA.” The court pointed out that if employers were required to designate leave under FMLA/CFRA regardless of the wishes of the employee, employers could be exposed to legal risk for forcing such leave on the employees in the form of an interference claim.

Do you have questions about FMLA, CFRA, or the proper use of Vacation Leave?

If so, don't hesitate to contact leading Encino, California employment lawyers from Kingsley & Kingsley for a free initial consultation. To discuss your situation call us toll-free at (888) 500-8469 or click here to contact us regarding your case.

About the Author

Eric Kingsley

In practice since 1996, the firm's lawyer and co-founder, Eric B. Kingsley, has litigated complex cases and written numerous appeals in state and federal courts on behalf of the California law firm Kingsley & Kingsley, including More than 150 collective actions. Mr. Kingsley focuses his practice ...


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