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Federal appeals court says that employees can choose whether leave should be treated as FMLA-leave

In Escriba v. Foster Poultry Farms, the Ninth Circuit Court of Appeals, a federal appellate court in California, held that an employee who takes leave that would qualify for protection under the Family and Medical Leave Act (FMLA) may choose not to have that leave count as FMLA leave. Under the FMLA, employers must permit employees eligible for FMLA to take 12 weeks of leave per year for FMLA-qualifying reasons, such as to care for a child or parent with a serious health condition. According to the Ninth Circuit, an employee can decide to take accrued paid time off (PTO) for a FMLA-qualifying absence and the employer cannot deduct that time from the 12 weeks of FMLA available to her.

Some employer advocates are distressed about the Escriba decision. Many employers prefer to require employees to use their FMLA leave whenever they take leave from work for a FMLA-qualifying reason. These employers want employees to exhaust their FMLA leave as quickly as possible so that they can limit the amount of leave they have to give their employees. If an employee can take PTO to, for instance, care for a parent with a serious medical condition and choose not to have that PTO count against her 12 weeks of FMLA leave, the employee can save her FMLA leave for another time–something many employers don’t want.

While the Escriba decision would seem to help employees, it did not help Ms. Escriba. Ms. Escriba lost her case because she chose not to designate her leave from work to care for a sick parent as FMLA leave and, consequently, the leave was not protected. Thus, the employer was legally permitted to fire her when she violated its “no-show, no-call” policy even though she was on a leave of absence that would have been protected under the FMLA had she chosen to designate it as FMLA leave.

Importantly, the Escriba decision is only binding on employers in the Ninth Circuit, which does not include Maine. However, it is possible that the First Circuit Court of Appeals, which issues decisions applicable to Maine, will follow the Ninth Circuit’s reasoning in Escriba in the future. Regardless, one lesson employees should take away from Escriba is that if they take PTO for a FMLA-qualifying reason and they’re not sure whether they will need more leave than the PTO available to them, they should communicate the reason for the leave to their employer. They should also tell their employer that if they run out of PTO while on leave, they will want the rest of their leave to count as FMLA leave.