What do you do when one of your employees has informed you of what clearly is an FMLA-triggering event (she needs to care for her dad who is seriously ill in the hospital), but then tells you she doesn't want the absence designated as FMLA leave? I'll share my opinion below, but in the meantime, one of the most employee-friendly courts in America just told us this past week that you can grant the employee's wish and not designate the absence as FMLA leave, even though it otherwise would be covered by the FMLA.
Although we are barely three months into the new year, I predict this decision, Escriba v. Foster Poultry Farms (pdf) will be one of the Top 5 most influential FMLA cases of 2014. So, for this reason alone, the analysis below might be worth the read.
Maria worked at a poultry processing plant owned by Foster Farms. By any measure, Maria was a pro on the FMLA circuit: throughout her employment, she 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, whose second language is English, explained to Linda that her "father is no good" and was in the hospital. So, she stated, "Linda, for me, vacation." Linda responded, "Okay, Maria, you vacation." She told Maria she would approve two weeks of vacation.
Later that day, Maria approached Linda again, this time stating, "Please one week or two week free for me," which she later explained meant she was asking for unpaid leave in addition to vacation. Linda rejected her request.
Still apparently confused, Linda returned with another supervisor who acted as an interpreter and, through a series of questions, confirmed that Maria did not want to take any more than the two weeks of vacation she had just been granted.
Afterward, Maria reached out to Ed, the facility superintendent, and explained (in Spanish, which he understood), "I'm on my way to Guatemala . . . because my dad is very ill. I am only going with two weeks vacation [but] wanted to know if you could do me a favor and give me one or two weeks more leave." Ed told her he could not provide any additional leave.
Thereafter, 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.
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 affirmatively 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.
Interestingly, on no fewer than 15 previous occasions, Maria requested FMLA leave directly from Human Resources, as required by Company policy. According to the court, her failure to do so on this particular occasion only further indicated that she did not wish to utilize FMLA leave to protect her absence.
Judgment for employer affirmed.
What is Wrong with the Court's Decision?
Ugh. I don't like this decision, largely because its holding undoubtedly will leave employers unsettled as they determine whether to designate FMLA leave in the future. Don't get me wrong -- I root for employers, so I'm doing the happy dance for Foster Farms because they prevailed. But what's good for Foster Farms on this occasion likely is a mess for the rest of us.
Simply put, the court's reasoning is contrary to the common understanding that employers designate an absence as FMLA leave whenever it is taken for an FMLA-qualifying reason, regardless of what the employee might want. There are good reasons for designating these absences as FMLA leave:
It actually avoids administrative nightmares for employers. To try and divine the intent of someone like Maria will lead to chaos. Contrary to what the Escriba court might suggest, it is far easier from an administrative standpoint to designate FMLA leave when the leave qualifies as such. Employees' preferences should not control the issue.
Designating an absence as FMLA leave where it qualifies as such protects the employee's job. If the leave is not designated as FMLA leave, the employee's absences are subjected to the employer's attendance policy, which undoubtedly will lead to more employee terminations. Perhaps an unintended consequence of the Escriba decision?
If an employee has the flexibility to choose when and where FMLA applies, employers effectively provide employees more leave than they are legally entitled. Take Maria's situation, for instance. Under Foster Farms' FMLA policy, her paid leave and unpaid FMLA leave should have run concurrently. Thus, the maximum amount of leave available to her (between her paid and unpaid time) would have been 12 weeks. However, if you allow her to control whether FMLA applies, she can exhaust all of her paid leave first (which we know was at least two weeks) and then use another 12 weeks of FMLA leave at a later date.
Building on this last point, as a practical matter, employers want FMLA leave to exhaust sooner, rather than later. So, for the far majority of employers, the Escriba holding will not be well received, since it endorses an employee's ability to stack paid leave and unpaid FMLA leave consecutively rather than concurrently.
There were plenty of thoughtful reasons the court have employed to affirm the jury's defense verdict here, but it chose not to. For instance, the court could have decided that Maria did not provide adequate notice of the need for FMLA leave because she did not follow the employer's usual and customary policy for reporting leave to Human Resources. It also could have taken the approach that Maria simply was not entitled to reinstatement to her job because she went AWOL -- indeed, the record indicates that she blew past her return date by 16 days before contacting Foster Farms.
Insights for Employers
Of course, you're wondering: This is all fine and good, but Jeff, would you just tell me how I handle leave requests in the future where the employee informs me that he doesn't want FMLA leave to apply?
To be candid, my recommendation is to ignore the Escriba decision and designate the absence as FMLA leave if it indeed qualifies as such. For me, the FMLA regulations are clear. At 29 C.F.R. 825.301(a), the DOL tells us, "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 influence this process. To the contrary, the regulation states that the employer designates once it knows the absence is for an FMLA-qualifying reason.
For ages, I've counseled my clients in these situations to designate the absence as FMLA leave and remind the employee of two things: 1) the employer has no choice in the matter -- once the absence qualifies under the FMLA, the regulations require the employer to designate the time as FMLA leave (under Section 825.301(a)); and 2) it actually works to the employee's benefit to designate the time as FMLA leave, since it ensures that their job is protected during leave. I explained this in a blog post last year, if you want further guidance on this situation.
Despite the Escriba decision, and with all respect to the Ninth Circuit Court of Appeals, I'm not changing my tune now. And neither should you.