The U.S. Court of Appeals for the Ninth Circuit recently held
that employees can choose not to use FMLA leave, even if the reason
for seeking leave would be protected under the Act. In
Escriba v. Foster Poultry Farms, the court ruled in favor
of Foster Poultry, finding that the employer did not violate the
FMLA when it terminated a long-term employee, Maria Escriba, after
she did not show up for work or call within three days of her
expected return to work following an approved vacation.
Escriba had requested, and the company had approved, two
weeks' vacation to travel to Guatemala to care for her sick
father. Ultimately, Escriba did not return or otherwise
contact Foster Poultry for approximately one month, and the company
terminated her employment based on its three-day no-show, no-call
rule for union workers. The company presented evidence
showing that Escriba did not wish to use available FMLA leave,
evidently intending to preserve that leave for a
