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Your liability when a worker refuses family leave

November 16, 2015 --

By Dunn, Carney, Allen, Higgins & Tongue

Employer Avoids Liability When Employee Refuses FMLA Leave

In a recent federal case applicable to Oregon and Washington employers, Foster Farms was found not to have interfered with an employee’s rights under the Federal Family and Medical Leave Act (FMLA) when the employee affirmatively declined to use protected FMLA leave and was later terminated for violating the employer’s three-day no-call, no-show rule. The case is Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014). The court held that an employee may have a right to FMLA leave but decide not to take it. Otherwise, employers would be placed “in an untenable situation” of “forcing FMLA leave on the unwilling employee”—one that could lead to liability for FMLA interference. The court also found compelling evidence the employee knew vacation requests were made to her supervisor, whereas requests for FMLA leave were made to Human Resources. The employee had requested FMLA leave on 15 previous occasions—each time by going to Human Resources—whereas all prior vacation requests were taken to her supervisor.

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