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Seventh Circuit Upholds Denial of FMLA Leave To Employee Who Ignored Employer's Telephone Calls

Written by Brian Hall PorterWright Wednesday, 16 March 2011 00:00

As the Seventh Circuit in Righi v. SMC Corporation of America noted, it generally does not take much for an employee to preserve his rights under the FMLA; he must simply provide enough information "to place the employer on notice of a probable basis for FMLA leave."

When Robert Righi abruptly left a mandatory training seminar to care for his ill mother, however, he only sent an e-mail that said that he needed "the next couple days off" to arrange for his mother's care and that he had vacation time available or "could apply for the family care act, which I do not want to do at this time." Mr. Righi's manager attempted to call him on his cell phone several times over the next week or so to clarify his request for leave, but Mr. Righi had turned off his phone. His manager also left two messages with his roommate. It wasn't until the ninth day after taking his leave that Mr. Righi called in. At that point, however, his manager called him into the office and fired him the next day.

When an employee fails to give his employer proper notice of the need for FMLA leave, the employer has no duty to provide it. Stated otherwise, an employee's failure to comply with the FMLA's notice requirements precludes a claim that the employer interfered with his rights under the FMLA because he failed to fulfill his obligations in order to be protected. While not sufficiently clear to trigger SMC's obligation to provide written FMLA materials and certification forms to Righi, his email did trigger SMC's obligation to make further inquiry as to whether he intended to designate his leave as FMLA. The Seventh Circuit held that SMC met that obligation by making multiple phone calls to him and that Righi's failure to respond "doom[ed] his FMLA claim because he not only failed to designate his leave as FMLA, but he also failed to give SMC any indication as to when he would be returning to work."

Relying on Section 825.303 of the FMLA regulations, the court noted that when the need for leave was unforeseeable, as it was here, the employee needs to notify his employer "as soon as practicable" -- within one or two working days -- of the anticipated duration of his leave. Righi's e-mail suggesting that he would be out for "the next couple days" was insufficient to provide this notice. In addition, the court held that where the anticipated duration of leave is unknown, the employee must at least communicate that fact to the employer, together with some estimate of the leave's duration.

Finally, the court emphasized that employers may require their employees to comply with their "usual and customary notice and procedural requirements" when requesting FMLA leave. Here, SMC had policies that required employees to obtain approval for leave from their supervisors and its attendance policy stated that an unapproved absence of two consecutive days or more was grounds for termination. The court held that Righi's failure to obtain his manager's approval for his leave and subsequent absence of nine days provided additional bases for his termination.

The Righi case very well illustrates how an employer should make further inquiries when a request for FMLA leave is in doubt. In addition, the Righi case also demonstrates the importance of having policies in place that require employees to communicate with them while they are on leave.

This article was courtesy of PorterWright

Biography

Brian helps companies effectively manage their full range of workforce issues. He helps employers reduce their potential liability, risk and costs by providing preventative advice and counsel regarding day-to-day workplace issues. In addition, as editor of the firm’s employment law blog — Employer Law Report — Brian is constantly reviewing recent cases, legislation, and other employment law developments and helping our clients understand how these changes may impact their organizations. More information and updates can be found on his Twitter feed @BrianDHallEsq, including employment law news, resources and views.

When employment-related disputes escalate to litigation, Brian represents management interests in employment and workers’ compensation matters in both union and non-union environments. In fact, he devotes a majority of his practice to defending employers in litigation involving employment discrimination, wrongful discharge, allegations related to workplace injuries and occupational diseases (including employment intentional tort litigation), as well as claims arising under ERISA. Brian also has significant experience advising employers and litigating the enforcement of rights and obligations under non-compete agreements and laws relating to misappropriation of trade secrets.

As a Certified Specialist in Ohio Workers’ Compensation Law by the Ohio State Bar Association, Brian helps both state-funded and self-insured employers manage their workers’ compensation programs and defend against individual claims. Viewing workers’ compensation from a general employment law perspective, he helps employers understand how their approach to workers’ compensation is impacted by federal laws such as the Americans with Disabilities Act, the Family and Medical Leave Act, and ERISA and state law concepts addressing workers’ compensation retaliation and employment intentional tort.

Brian is also a Certified Information Privacy Professional through the International Association of Privacy Professionals (IAPP), the world’s leading association of privacy and security professionals. Brian regularly advises employers concerning workplace privacy matters, including medical privacy issues raised by the Americans with Disabilities Act, the Family and Medical Leave Act, and the Health Insurance Portability and Accountability Act (HIPAA), maintaining the privacy and security of human resources data, and privacy issues raised by communication, internet, social media, location and other technologies.

Brian is listed in The Best Lawyers in America® in the areas of Employment Law and Workers’ Compensation Law and has been named an Ohio Super Lawyer® in 2004 and 2005 for Workers’ Compensation, and 2010 and 2011 for Employment Law.

Full bio

At PorterWright Brian Hall helps companies effectively manage their full range of workforce issues. He helps employers reduce their potential liability, risk and costs by providing preventative advice and counsel regarding day-to-day workplace issues. In addition, as editor of the firm’s employment law blog — Employer Law Report — Brian is constantly reviewing recent cases, legislation, and other employment law developments and helping our clients understand how these changes may impact their organizations. More information and updates can be found on his Twitter feed @BrianDHallEsq, including employment law news, resources and views.

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Author of this article: Brian Hall PorterWright

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