Employees who take unanticipated leave under the Family and Medical Leave Act (FMLA), but fail to respond in a timely manner to employer inquiries about the length of their leave, face termination and loss of their FMLA rights, according to a recent decision by the United States Court of Appeals for the Seventh Circuit. In light of this ruling, companies should ask employees how long they think their FMLA leave will last, and make sure that their FMLA policies require timely notification from employees about the anticipated length of their leave.

In Righi v. SMC Corp. of America, decided February 14, 2011, an employee (Robert Righi) learned that his elderly mother had a medical emergency. After leaving work, Righi e-mailed his supervisor, saying that he needed "the next couple of days off" to arrange for his mother's care. He also stated that he had vacation time available, or that he "could apply for the family care act, which I do not want to do at this time."

The supervisor then tried for more than a week to reach Righi by phone to clarify his leave request. Righi neither returned these calls nor contacted his employer in any other way. When Righi finally returned to work nine days later, SMC fired him for violating the company's FMLA policy. Righi then sued SMC. The trial court entered summary judgment for the employer, ruling that, even assuming that Righi's e-mail invoked his FMLA rights, he failed to notify SMC of his anticipated return date (as required by company policy and applicable FMLA regulations) and ignored his supervisor's repeated phone calls requesting more information about his leave.

What Does the FMLA Say?

The FMLA places the burden on employees to notify their employers of the anticipated duration of unforeseeable leave "as soon as practicable," which the regulations define as "no more than one or two working days" after learning of the need for leave. FMLA regulations also allow employers to enforce compliance with their usual and customary notice and procedural requirements regarding FMLA leave. In Righi, the appeals court held that because the employee failed to comply with applicable regulatory and policy requirements, the employer did not violate the FMLA by firing the employee.

The court noted that "it does not take much for an employee to invoke his FMLA rights," explaining that an employee only needs "to place the employer on notice of a probable basis for FMLA leave." The applicable regulations make it clear that an employee "need not expressly assert rights under the FMLA or even mention the FMLA" to invoke his rights. Rather, he must only tell the employer that leave is requested for some reason covered by the FMLA.

Ordinarily, caring for a seriously ill parent is sufficient to invoke FMLA protections for an employee. But, the court noted, an employee may waive his FMLA rights if he clearly expresses to his employer that he does not wish to use FMLA protections. In Righi, the employee implied that he might consider using his FMLA leave at some point. Once that happened, the burden shifted to the employer to take certain affirmative steps to process the leave request. In particular, the employer had a duty to provide Righi with a written explanation of his FMLA rights and responsibilities, and to make further inquiry if the employer needed additional information before it could process the leave request.

Although Righi's supervisor made numerous attempts to learn more about the situation, the employee never responded to 15 phone calls within a seven-day period. The appeals court held that this behavior doomed Righi's claim, noting that the FMLA "does not authorize employees to keep their employers in the dark about when they will return from leave," and that employers are entitled to the "sort of notice that will inform them not only that the FMLA may apply, but also when the employee will return to work."

Employer Precautions

In order to protect themselves regarding unanticipated FMLA leave, employers should take the following precautions:

1. Make sure your FMLA policy requires employees to notify the company as soon as possible after taking unanticipated FMLA leave. The policy should also require them to estimate the duration of the leave and, absent extraordinary circumstances, timely respond to inquiries about the length of the leave.
    
2. When an employee takes unanticipated FMLA leave, ask how long the employee thinks the leave will last, and carefully document those inquiries. Then, if the employee fails to respond, the employer can terminate the employee without incurring FMLA liability.