The Family and Medical Leave Act provides eligible employees with a legal entitlement to unpaid leave in qualifying circumstances. Many employers have run into a situation where an employee who qualifies for FMLA leave, prefers to use vacation or other types of time away from work. Last week, the Ninth Circuit Court of Appeals agreed that employees who affirmatively decline to use FMLA leave lose the Act’s protections if they fail to follow the employer’s alternative leave policy.

In Escriba v. Foster Poultry Farms, Inc., the plaintiff informed her supervisor that she needed time away from work to visit her sick father in Guatemala. The plaintiff had previously taken FMLA on multiple occasions, but specifically requested vacation time for the visit home. She was granted two weeks’ vacation, and was told to contact human resources if she needed more time off. The plaintiff did not return to work as scheduled, and was terminated under the company’s no-call, no-show policy. She sued, alleging interference with her right to take FMLA leave for care of her sick father.

The Ninth Circuit affirmed a jury verdict for the defendant. The court rejected the plaintiff’s claim that her FMLA rights were automatically triggered when she notified her employer of the reasons for the absence. The plaintiff did not impermissibly waive her rights to FMLA leave, instead she deferred protected leave, presumably for later use. The employer has an obligation to determine whether the employee is requesting FMLA leave, but can agree to use of vacation or other leave based on the employee’s preference. Using the plaintiff’s theory, employers would have to force employees to use FMLA leave over their objections.

Most employers’ FMLA policies allow vacation time and FMLA to run concurrently. Employers would have the ability to begin running the FMLA clock even if the employee only seeks use of vacation time. In other words, if an employee qualifies for FMLA leave, the employer does not have to agree to a request to defer it. Assuming this reasoning is adopted in other federal appellate circuits, if the employer complies with this request, an employee who expressly declines FMLA leave (hopefully in writing) is held to the company’s regular attendance policies and cannot later claim rights applicable under FMLA leave.