Employers: Limit FMLA Liability by Making Them Pick Only One From the Menu

A recent federal appellate court decision illustrates how employees may limit their rights by affirmatively choosing to designate time-off as vacation time rather than as leave protected by the Family and Medical Leave Act (FMLA). In the recent case, the United States Court of Appeals for the Ninth Circuit upheld a jury’s verdict in favor of an employer that had fired an employee for violating its “three day no-show, no-call rule” after she failed to return to work following a two-week trip to take care of her ailing father. The ruling provides three practical lessons for employers:

(1) Employers Must Affirmatively Notify Employees Of Their FMLA Rights

In the decision, the employer was well positioned to defend itself because its supervisors affirmatively notified the former employee of her right to take FMLA leave. After she requested vacation because her father was “no good” and in a “hospital in Guatemala,” the supervisors wisely did not let the discussion end there. Instead, they recognized the duty to notify the employee of her right to FMLA leave, which was triggered regardless of the employee’s failure to expressly mention “family leave” or the “FMLA.” Her supervisors asked the employee to clarify her leave request in writing and followed up by assigning a Spanish-speaking supervisor to discuss it with her. In Spanish, the employee clarified that she preferred to use vacation time rather than family leave to care for her father.

(2) Supervisors Would Have Been Wise To Ask The Employee To Confirm Her Choice In Writing

Though the employer ultimately prevailed, it did so only after lengthy discovery, a six-day jury trial, and the employee’s unsuccessful appeal to the Ninth Circuit. The company could not obtain a speedier resolution of the case because it was a classic “he said, she said” regarding whether or not she told her supervisors she did not want to take FMLA leave. Had it documented the employee’s expressed wish not to take FMLA, the employer likely would have prevailed in the lawsuit much sooner because written evidence often disposes of “he said, she said” possibilities before they get to the jury.

(3) Implications for Policies Requiring Concurrent Exhaustion of Vacation and FMLA Leave

The recent decision highlights an oftentimes overlooked aspect of policies requiring concurrent exhaustion of vacation leave and FMLA leave. Where such a policy exists, and the employee initially declines FMLA leave, he or she preserves more leave – though not protected leave – than if she initially accepted the FMLA leave. For example, if an employee exhausts two weeks of vacation time concurrently with the first two weeks of FMLA leave, that employee is left with up to 10 weeks of FMLA leave upon exhaustion of vacation time. In contrast, an employee who initially declines FMLA, but requests it upon exhaustion of two weeks of vacation, preserves a total of up to 14 weeks of leave. However, only the time the employee takes as leave designated under the FMLA is protected leave. Additionally, and as the recent decision illustrates, the employee’s trade-off for using vacation first to create additional leave time is reduced legal protection if he or she fails to return from the initial period of vacation leave without requesting an extension of leave under the FMLA.