Friday, December 9, 2022

When Can Worker Decline Family Medical Leave? Subject Untested

Our employee went out on workers’ compensation leave this week and will probably be gone a few months. Should we place him on family medical leave at the same time?

California employers are required by law to carry workers’ compensation insurance for their employees who suffer a workplace injury. Workers’ compensation covers medical expenses related to a workplace injury; however, it does not necessarily provide a leave of absence.

Evaluate Eligibility

Employers that are covered under the federal Family Medical Leave Act (FMLA)/California Family Rights Act (CFRA) should evaluate whether an employee with a workplace injury is eligible for protected leave and designate the time off under FMLA/CFRA, if applicable.

What happens when an employee does not want to designate their leave? There is one case that addressed this issue; however, it should be noted that this case was not related to an employee with a workplace injury.

Court Case

A 2014 decision (Escriba v. Foster Poultry Farms), stated that an employee can affirmatively decline to use the FMLA, even if the worker’s underlying reason for seeking time off would have invoked the law’s protection.

In the Escriba case, Maria Escriba took time off to see/care for her father who was ill and in the hospital, but all she wanted to take was vacation time—even though she took more than her two weeks of vacation. The court stated:

“An employer’s obligation to ascertain ‘whether FMLA leave is being sought’ strongly suggests that there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA. And a compelling practical reason supports this conclusion. Holding that simply referencing an FMLA-qualifying reason triggers FMLA protections would place employers like Foster Farms in an untenable situation if the employee’s stated desire is not to take FMLA leave. The employer could find itself open to liability for forcing FMLA leave on the unwilling employee.”

The Escriba case appears to be the only case upholding the employee’s right to request time not be designated as FMLA. It also did not involve workers’ compensation, unlike this situation.

Seek Legal Counsel

It is clear that an employer should openly communicate with its employees, making sure they know their rights to take FMLA. The right to decline it is an untested area outside the Escriba case, and if an employee indeed wishes to decline FMLA, it is highly recommended that the employer seek legal counsel.


The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Staff Contact: Dana Leisinger

Dana Leisinger
Dana Leisinger
Dana Leisinger joined the CalChamber in 2000 and currently serves as an HR adviser. She has advised employers on matters such as employment law, wrongful termination, discrimination, sexual harassment and wage and hour issues. She also has conducted seminars and training and guided employers through various levels of governmental investigations. Leisinger holds a J.D. from the McGeorge School of Law, University of the Pacific.

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