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Best Lawyer Answers: Should I Talk To An Attorney Before Declining FMLA Leave?

On Behalf of | Mar 6, 2014 | Family Medical Leave Claims, Wrongful Termination |

Medical Leave Attorney Top Answers: Can I waive my FMLA rights? Do I have to request FMLA if the reason for my leave is covered? Does my employer have to ask me if I want to take FMLA leave?

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The Family Medical Leave Act (“FMLA”) allows qualified employees to take up to 12 weeks of unpaid leave in each 12 month period. To qualify, first, an employee must have worked for the employer for at least the 12 months before the leave and worked at least 1250 hours during that time. Second, the employer must employ at least 50 people within a 75 mile radius. And, finally, employees can only use FMLA to care for their own or their immediate family member’s serious health condition, or to care for a newborn or an adopted child.

If you qualify for FMLA leave, the first obvious step is to ask your employer to take the leave. But, it may also be wise to contact an employment attorney before taking or declining to take leave, especially after considering the Ninth Circuit’s recent decision in Escriba v. Foster Poultry Farms.

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Maria Escriba worked at Foster Poultry Farms (Foster) in California. She asked her supervisor (who didn’t speak Spanish) for time off to visit her sick father in Guatemala. Foster claimed Maria asked her supervisor for two weeks paid vacation and one week unpaid FMLA leave, a request the supervisor rejected. A few days later, her supervisor asked another management employee who spoke Spanish to ask Maria if she needed more than two weeks off. Maria said no and took her vacation. Maria was scheduled to return on December 10. But, she stayed in Guatemala and didn’t get in touch with her supervisors. Foster fired her because she violated their “three day no-show, no call rule.”  Was this a wrongful termination?

Maria filed suit against Foster under FMLA and California law. The circuit court concluded an employee could decline to use FMLA even if the underlying reason for taking the leave would have invoked FMLA protection. It relied on the Department of Labor’s (“DOL”) implementing regulations, which require an employer to ask an employee if they are requesting FMLA leave when the leave seems like it qualifies under FMLA. In this case, Foster followed that medical leave requirement and offered additional time under FMLA. Maria argued the DOL’s regulations do not allow an employee to waive FMLA rights. So, permitting an employee to decline FMLA leave is the same as waiving the right. The court rejected her argument and found that under the FMLA an employee cannot trade their rights for some benefit conferred by the employer. In this case, however, Maria was declining to exercise her right to preserve it for the future.

It seems like Ms. Escriba was confused about exactly what she was requesting. And, her employers only made a half-hearted attempt to discover whether or not she was actually declining to exercise her rights under FMLA. Perhaps if Maria had spoken with employment lawyers before taking vacation and allegedly refusing FMLA leave she would not have been fired. In the least, she would have had a better understanding of her rights and options under the FMLA.

Employment laws are complex. Employers have human resource departments, legal divisions, and outside law firms dedicated to studying employment laws. Yet, often, they fail to interpret or apply those laws correctly. How can employees hope to understand employment laws if employers with vast resources do not comprehend them? An employee’s first line of defense is always an experienced employment law attorney.

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA), you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.


The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get medical leave under the FMLA?”, “what should I do when my job won’t give me medical leave?”, “can my boss deny me medical leave?” or “is my employer allowed to…?”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.


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