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Pick your poison: protected or unprotected leave?



By Doug Hanson

A processing plant worker for a poultry farm worked for eighteen years prior to her termination.  Upon discovering her father was sick in Guatemala, the processing worker requested two weeks of leave from her supervisor.  Since there was a language barrier of sorts, the supervisor sought to clarify the request after recognizing the potential the request could be an FMLA request.  Thus, the supervisor, at one point, described the request as vacation on a piece of paper and even included another supervisor in the conversation to clarify the processing worker was requesting vacation and not FMLA leave.  The processing worker affirmed she was requesting vacation.  The processing worker only asked for two weeks of leave and refused additional leave.  The two weeks was approved for vacation leave.

Ultimately, the processing worker was gone for more than two weeks and was terminated due to the poultry farm’s “three day no-show, no-call rule,” which automatically resulted in termination of employees who are absent for a period of three work days without notifying the farm or seeking a leave of absence.  The processing worker sued, arguing the poultry farm was required to designate her leave as FMLA-protected and provide her with a notice of her rights under FMLA regardless of whether she expressly declined to classify the leave as FMLA.

Worker must designate leave

The district court jury and the Ninth Circuit Court of Appeals disagreed with the employee.  First, the proof showed the processing worker was familiar with FMLA leave and the overall procedure.  In fact, she made fifteen prior FMLA leave requests.  Further, she knew to seek FMLA leave from human resources, and she knew to seek vacation from her supervisor.  Here, the processing worker requested leave from her supervisor, which the supervisor clarified as a request for vacation leave.

Second, while the poultry farm had a policy providing FMLA and vacation leave should run concurrently, the court noted requiring them to run concurrently would be a form of FMLA interference because it would limit the processing worker’s ability to take future FMLA leave.  In particular, the court held an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.  Thus, the processing worker’s decision to take unprotected vacation leave, and her subsequent failure to contact the poultry farm within three business days to explain why her absence from work exceeded her vacation request, resulted in a legitimate termination. 

While the holding in this case is, at least in the Ninth Circuit, employees may elect to defer FMLA leave, there is a less obvious additional lesson.  Here, the supervisor did not seek to have the processing worker confirm her choice in writing.  With a simple writing confirming the processing worker’s decision to forego FMLA leave and just use vacation leave, the poultry farm may have saved significant sums of money it had to use in a lengthy discovery process and a six-day jury trial.


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