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Question: What are the implications of the ruling in the 9th Circuit Court of Appeals that stated an employee can decline Family and Medical Leave Act (FMLA) leave even if their leave qualifies?

Answer: The long-term impact of the Ninth Circuit ruling (Escriba v. Foster Poultry Farms, Inc.) is still to be seen as the court in this case, even though they upheld the right to expressly decline FMLA. The regulations imply simply referencing the Family and Medical Leave Act (FMLA) qualifying reason triggers FMLA protections, and that this would place employers in an indefensible situation if the employee’s stated desire is to not take FMLA leave. The employer could find itself open to liability for forcing FMLA leave on the unwilling employee.

Escriba argued that if an employer could require an employee to affirmatively decline FMLA leave it would be the same thing as making an employee waive his or her rights under the FMLA. The FMLA has a provision that prohibits waiver of prospective rights under the FMLA (29 C.F.R. 825.220(d)). The court said that this provision means only that an employee cannot trade off the right to take FMLA leave against some other benefit offered by the employer, such as vacation time, but rather that the two should run concurrently. It did not mean that an employee could not expressly decline FMLA leave.

This case is significant because there are few, if any, reported cases that have recognized the right of employees to expressly decline FMLA leave where the reason for the leave would be protected under the FMLA.

We are advising any company that has an employee who explicitly wishes to decline FMLA to consult with their attorney on the most recent opinions for legal guidance.