This is news to me. Since when do Employees get to choose whether they want to use FMLA? Well that is what Escriba v. Foster Poultry Farms delt with. So what will you do when an employee clearly needs FMLA but does not want to use it?

The Facts
Maria worked at a poultry processing plant owned by Foster Farms. Maria throughout her employment took FMLA leave on 15 different occasions.

In November 2007, Maria approached her direct supervisor, Linda, to request time off to care for her ill father in Guatemala. Maria requested she be able to use her vacation time. Maria’s supervisor granted her vacation time and then Maria left for Guatemala. She remained there well past her return date, and she didn’t contact Foster Farms until 16 days after she was scheduled to return to work. As a result, Maria was terminated for violating the Company’s three day no-call, no-show rule.

Court Decision
After her termination, Maria filed an FMLA interference claim. Her argument was straightforward: the reason for her leave—caring for her ill father—triggered FMLA protection, and she notified her employer of the need for leave for this purpose, so her employer was obligated to designate her absence as FMLA leave. Because of the “he said, she said” nature of the allegations, the case proceeded to a jury trial, where the employer prevailed. Maria appealed the jury’s verdict.
At issue in the appeal was whether an employee can decline using FMLA leave, even though the underlying reason for leave would have been FMLA protected leave. To this question, the court answered, “yes.”

In reaching its decision, the court focused on the FMLA regulations’ expectation that the employer engage in an informal process to obtain additional information about whether the employee is seeking FMLA leave. Therefore, according to the court, the 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” in order to preserve her FMLA leave for a later time.  Judgment for employer affirmed.

Why I DO NOT like this decision.
This case creates a mess for employers.
Simply put, the court’s reasoning is the opposite of employer’s common understanding of the regulations. Employers are required to designate a leave of absence as FMLA if it qualifies as FMLA. In addition there are good reasons for designating these absences as FMLA leave:

• It actually avoids administrative nightmares for employers.
• Designating an absence as FMLA leave where it qualifies as such protects the employee’s job.
• If an employee has the flexibility to choose when and where FMLA applies, employers effectively provide employees more leave than they are legally entitled.

SO WHAT ARE EMPLOYERS TO DO?
If my clients ask me what to do, I will recommend ignoring the case. I know, it’s a court case. Well, the FMLA regulations are clear. 29 C.F.R. 825.301(a), says, “Once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave].” There is nothing in this regulatory provision to suggest that the employee can CHOOSE this process. To the contrary, the regulation states that the employer must designate once it knows the absence is for an FMLA-qualifying reason.

There are a number of cases that state employers are required to designate. The regulations say it as well. If asked how I feel about this case, I only have one thing to say, “No sir, I don’t like it.”