In Escriba v. Foster Poultry Farms, the U.S. Court of Appeals for the Ninth Circuit upheld a jury verdict in favor of an employer on an employee’s Family and Medical Leave Act (FMLA) claims. The employer discharged Escriba after she failed to return from an approved two-week vacation to care for her ailing father in Guatemala. Escriba argued that her employer was required to designate her absences as FMLA leave because it had notice that Escriba was absent for an FMLA qualifying reason. The employer argued that Escriba expressly declined to take FMLA leave in order to preserve her FMLA leave for future use. The Ninth Circuit agreed with the employer and held that an employee can affirmatively decline to take FMLA leave and can be disciplined under an employer’s attendance policy, even if the employee’s absence would qualify for FMLA protection. The case is a bittersweet victory for employers because the Ninth Circuit also suggested, in dicta, that employers would violate the FMLA by designating a qualifying absence as FMLA leave over an employee’s objection, and that employees can elect to use paid vacation first and defer taking the full 12 weeks of FMLA leave until later. Whether other courts will agree with the Ninth Circuit’s dicta is unknown, but the decision appears to contradict the FMLA regulations in several respects. First, the case was decided under the old FMLA regulations and not the 2008 regulations, which state that an employer is “responsible in all circumstances for designating leave as FMLA qualifying.” Nothing in this provision qualifies this obligation to mean that it only applies where the employee wants the time-off to be treated as FMLA leave. Second, the current regulations also expressly authorize an employer to run paid leave concurrently with FMLA leave, provided it notifies the employee of this requirement in writing, regardless of the employee's wishes. Third, generally, most employment laws do not give employees the right to waive their federally protected workplace rights which is, in effect, what an employee would be doing by declining to have time-off treated as FMLA leave, since the employee would be forfeiting, among other things, reinstatement rights. Therefore, it remains very much an open question as to whether other federal circuit courts of appeal would follow Escriba. In addition, from a practical standpoint, while the employer in Escriba prevailed after lengthy and expensive litigation, it is likely that the employer would not have faced the lawsuit in the first place if it, in fact, had designated, and treated, the time-off as FMLA-qualifying despite the employee's "choice" to reserve such leave for a later date. As such, if one of your employees declines FMLA coverage in circumstances where it applies, we recommend that you consult with your attorney first before treating the such leave as being not covered by the protections of the FMLA.