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Inquiring Minds and the FMLA


Complying with the many provisions of the Family and Medical Leave Act (FMLA) is a concern for even those well-versed in the Act. Recently, the Ninth Circuit Court of Appeals clarified when the FMLA applies, and spelled out an affirmative duty of the employer to inquire and confirm if an employee wants to take FMLA leave if eligible.

What Is the FMLA and How Does It Apply?

The FMLA entitles some employees to take unpaid, job-protected leave for certain family and medical reasons. It applies to employers that are public agencies and to private employers with 50 or more employees who work at least 20 weeks in the current or preceding calendar year. An employee is eligible for FMLA leave if they:

  • Worked for a covered employer for at least 12 months;
  • Worked at least 1,250 hours during the 12 months prior to the start of their FMLA leave; and
  • Work at a location where at least 50 employees are employed or within 75 miles of that location.

An eligible employee has the right to take 12 work weeks of unpaid leave in a 12-month period. In general, the employee can take leave due to their own serious health condition; for the birth of a newborn child; to care for a newly-adopted child; or to care for a spouse, child, or parent with a serious health condition. This right means that if an employer terminates or otherwise retaliates against an employee for taking leave, it can result in a civil lawsuit or administrative proceeding against the employer for back pay, reinstatement, and other damages.

When a state provides greater protections than the federal FMLA standards, an employer must comply with state law as well. For example, the California Family Rights Act (CFRA) also covers same-sex domestic partners, and provides more privacy protections.

What Is an Employer’s Duty to Inquire?

An employer has the duty to ask an employee if they would like to take FMLA leave, even if the employee does not mention FMLA or otherwise does not assert their rights. In Bachelder v. America West Airlines, Inc., the Ninth Circuit Court of Appeals held an employer responsible for knowing whether an employee’s absence qualifies for FMLA protection. If an employer has sufficient information or has prior knowledge that an employee is taking leave for a reason that may be covered by the FMLA, the employer must then notify the employee of their eligibility for FMLA leave and ask if the employee would like to take leave under the FMLA.

Can an Eligible Employee Decline to Use Their FMLA Leave?

In a recent Ninth Circuit case, Escriba v. Foster Poultry Farms, Inc., the employee requested two weeks of vacation time to care for her sick father in Guatemala. Over the course of two separate conversations, the supervisor informed the employee of her FMLA rights, and confirmed that the employee only intended to use her two weeks of paid vacation time to care for her father. The supervisor told the employee to contact Human Resources if she needed additional time. Once in Guatemala, the employee realized she needed more than two weeks to care for her father, but she failed to notify HR or anyone else at work after the two weeks of vacation expired. The employer then fired the employee when she failed to return to work after the two weeks of vacation passed. The employee sued, claiming FMLA required her employer to designate her leave as FMLA automatically.

The Court of Appeals sided with the employer, holding that an employee can affirmatively decline their FMLA rights if given the option—even if the underlying reason for seeking the leave qualified for FMLA protection. The Escriba ruling suggests that an employee can initially refuse FMLA leave and use accrued vacation or paid sick leave, and then still claim the FMLA leave for the same incident after exhausting their paid leave. The Court also noted that an employee does not need to assert rights under the FMLA or even mention FMLA to trigger the initial duty of inquiry.

Instead, employees “need only notify their employers that they will be absent under circumstances which indicate that the FMLA might apply.” Then the employer must “inquire further of the employee . . . whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken.” Here, the employer inquired, and the employee declined to take any FMLA leave, so the employer prevailed in the lawsuit. However, if the employee had contacted her supervisor and stated she needed more time to care for her sick father, the employer would have needed to again provide information about FMLA leave and again inquire if the employee wanted to take FMLA-covered leave.

Even if an employee is vague about their reasons for taking leave, inquiring minds need to know: employers have a duty to inquire and confirm that their employee knows about their right to FMLA leave, and that they are either taking or declining the leave available under the FMLA.


Ryan J. Kohler and Lisa L. Peterson
Collins Collins Muir + Stewart LLP

Published with permission from CCM+S