In 2007, Maria Escriba requested and received two weeks of vacation from her employer to travel to Guatemala to care for her ailing father.  When Escriba did not return to work at the end of her leave, the employer discharged her.  Escriba sued, alleging that her employer unlawfully interfered with her right to take FMLA leave because her reason for taking a vacation – to care for her father – automatically entitled her to the FMLA’s protection.  The employer argued that although Escriba provided an FMLA-qualifying reason for her vacation request, she specifically declined to have her vacation count as FMLA leave.  Consequently, she could not assert a claim under the FMLA.

The Ninth Circuit Court of Appeals recently disagreed with Escriba. Escriba v. Foster Poultry Farms, Inc., No. 09-CV-01878 (9th Cir. Feb. 25, 2014).  It held that Escriba could decline FMLA leave and rely only on her vacation leave when taking time off to care for her father, thus preserving all twelve weeks of her FMLA leave for future use.

Many employers require available paid leave to be used at the outset of any unpaid FMLA leave, with the paid leave running concurrently with the unpaid FMLA leave.  For example, an employer might require an employee who takes twelve weeks of unpaid FMLA leave to use three weeks of available vacation leave at the outset the time off, resulting in three weeks of paid leave and nine weeks of unpaid leave.  Does the Ninth Circuit’s decision mean that an employee can refuse to take paid leave and FMLA leave concurrently, even when an employer requires it?  Probably not, but expect to see this argument crop up in future cases.