Such was the case for Robert Righi.  In a fantastic opinion for employers, a federal appellate court recently upheld the dismissal of Mr. Righi's FMLA claim because he failed to respond to his supervisor's telephone calls inquiring about his need for a leave of absence.  Righi v. SMC Corporation of America

The Facts

Righi, a salesman for SMC Corp., was the primary caretaker for his mother, who regularly suffered complications from diabetes.  As a result, Righi often took FMLA leave to care for her.  On the occasion at issue, however, he asked for time off after his mother accidentally overdosed on her medication. 

I need the next couple days off to make arrangements in an intermediate care facility for my Mother. . . . I do have the vacation time, or I could apply for the family care act, which I do not want to do at this time.

I hope you can understand my situation and approve this emergency time off. I will be very busy the next couple of days . . . so I might be slow getting back to you.

On receipt of the e-mail, Righi's supervisor made numerous attempts to contact Righi over the following seven days (in fact, well over ten times during that period).  On July 19, Righi finally returned his calls, admitting that he turned off his cell phone for a week.  Righi subsequently was terminated for violating SMC's call-in policy.  Righi sued, alleging that SMC interfered with his right to take FMLA leave.

The Ruling

The Court addressed two issues, both of which should be of interest to employers:

1. When an employee states that he does not want to take FMLA leave "at this time," is he affirmatively declining a request for FMLA leave?  Here, the court said no.  Although an employee may waive his FMLA rights if he "clearly expresses to his employer that he does not wish to use the protections of the FMLA," this was not necessarily the case here, since Righi simply stated that he did not want to use FMLA at this time.  The court reasoned that this phrase could be interpreted to imply that Righi might change his mind and opt to exercise his FMLA rights after all.  In these instances, it is necessary for the employer to inquire further "through informal means" to understand the circumstances of leave request and determine whether the FMLA is applicable.  29 C.F.R. 825.303(b).  This is precisely what SMC Corp. did here, a move which ultimately saved the day for the Company. 
2. Given Righi's initial (ambiguous) notice to SMC, does his failure to respond to his supervisor's telephone calls affect his right to FMLA leave?  Yes!  The employee has an obligation to respond to an employer's questions that are designed to determine whether an absence is potentially FMLA-qualifying.  When an employee does not respond, it may result in denial of FMLA protection.  According to the court, Righi's failure to respond to any of his supervisor's calls for more than seven days "doomed" his FMLA claim.

Insights for Employers

Employers can learn a lesson from SMC Corp's response.  When it received a rather ambiguous request for leave, the Company (indeed, a wise supervisor) attempted to communicate with Righi to determine the nature of the need for leave, and the timing and duration of his absence.  In doing so, it met its obligations under the FMLA.  At that point, it was Righi's obligation to provide this additional information.

When the need for leave is unforeseeable, as was the case here, the employee often will not know exactly how much leave he will need.  That's understandable.  However, as the court pointed out, the employee must at least communicate this fact to the employer, along with an estimate of the likely duration of the requested leave.  According to the court, Righi's FMLA claim was "doomed" because he made "no effort whatsoever" to keep SMC apprised of his fluid situation and was absent and out of touch with his supervisor for more than a week. 

The lesson here? Stay in touch, ask questions (especially when the request is vague or ambiguous) and insist that the employee maintain contact with you (pursuant to your call-in policies) to communicate the timing and duration of his or her absence.

Letecia Brown, a Ford assembly-line worker, provided the Company medical certification from her primary-care physician on August 21 indicating that she was unable to work until August 29 as a result of "stress."  Also on August 21, Brown scheduled an appointment with a psychiatrist for August 29, the next available date.  In the meantime, she asked her primary care physician to pass this information to her employer.  Her doctor failed to do so, and Brown made a fatal mistake -- she never followed up with Ford to ensure that a leave extension had been requested and granted. 

In the meantime, Brown claimed to have contacted Ford on August 30 to inform the Company that she now would be out until September 16.  Ford had no record of this call and sent her certified mail (per Ford's policy) notifying her that she had five days to return to work or provide proper verification of her illness or else she would be fired.  Although Brown received notice of the certified mailing, she never picked up the letter, which was waiting for her at the post office.  On September 11, when she failed to report to work or provide documentation supporting her need for continued leave, Brown was terminated for failing to follow Ford's procedures for seeking an extension of her initial FMLA leave.  Later that same day, Brown's psychiatrist faxed a leave extension request to Ford.  By this time, it was too late. 

The Lawsuit

Brown filed suit, claiming that Ford interfered with her FMLA rights.  The Court, interpreting pre-2009 FMLA regulations, upheld summary judgment in favor of Ford for two reasons: 1) an employee who seeks extension of FMLA leave must notify the employer within two working days of learning the need for the extension, and not within two days of the expiration of the initial leave; 2) here, Brown failed to follow Ford's usual and customary policies for reporting absences and seeking leave.  Notably, she knew as of August 21 that she would have an appointment with a specialist on August 29, one day after her current FMLA leave was set to expire.  Consequently, she could not establish any extenuating circumstances that made timely notice impracticable.

Insights for Employers

This is an excellent decision for employers, but at least for me, a bit of a surprise.  Just when we have become accustomed to courts taking a liberal intepretation of employee "notice" of the need for FMLA leave, the Seventh Circuit lays down the law to employees: follow your employer's usual and customary policies for reporting the need for leave or be prepared to suffer the consequences 

Clearly, once an employee takes FMLA leave, the employee bears the burden of notifying the employer of the need to extend the FMLA leave.  Therefore, employers that consistently apply procedures regarding leave requests and extensions have greater flexibility when it comes to addressing employees who fail to return from scheduled medical leaves of absence.

Employers should use the Brown decision as an opportunity to establish (or revise) clear personnel policies governing leave requests and extensions.  In doing so, it will save you a ton of grief -- and money.

So, I throw the question out to you: do you know of a vendor or other source where employers can obtain the FMLA poster in a language other than Spanish or English? If so, please share in the comments. 

After listening to this month’s FMLA Insights podcast, employers will have a clear understanding of what their responsibilities are when responding to a request for leave.

During the podcast, we will reference the DOL’s model Notice of Eligibility and Rights and Responsibilities (WH-381) and Designation Notice (WH-382).

Under the FMLA, an employer's obligation to provide leave arises only after an employee gives notice that he or she needs FMLA leave. However, it is well-established that an employee need not explicitly mention the FMLA when requesting leave. Rather, an employee's notice is sufficient if it gives the employer enough information to reasonably conclude that the employee may need leave for an FMLA-qualifying reason. Determining whether an employee's request for leave meets this requirement is a difficult proposition, particularly when the employee appears to be using the request to avoid instructions or shield himself from discipline. A recent decision of the 6th Circuit Court of Appeals sheds some light on the subject, and affirms that an employee cannot avoid discharge for insubordination merely by claiming that he had a headache and needed to go home. Gipson v. Vought Aircraft Industries, Inc. (.pdf).

Howard Gipson worked for Vought Aircraft Industries, Inc. as a plant maintenance worker. He also served as president of his local union. In late 2004, he had triple bypass heart surgery. He requested and received FMLA leave, and returned to work without incident. In October 2005, Gipson was removed from his position as union president. In January 2006, his successor removed Gipson's personal effects from the union office in the plant, placed them in the lobby outside the HR office, and asked Gipson to retrieve them. Gipson did not do so. On January 26, 2006, Gipson's supervisor, Charlie King, directed Gipson to remove his belongings from the lobby. Gipson did not comply, even after King repeated the instruction. When King ordered him to remove his belongings for a third time, Gipson stated that he began to feel unwell, and later alleged that King's behavior exacerbated his heart condition. However, he did not complain about his health or otherwise state that he needed medical attention. 

Later, Gipson went to the plant's First Aid department, where a nurse checked his blood pressure and found that it was "a little high, but within normal limits." Gipson asked the nurse for permission to go home, but was told that he needed authorization from his supervisor. Gipson did not claim that he told the nurse about any specific symptoms or mention his heart condition. 

On the way back from First Aid, Gipson told the union's safety committeeman to call King and request a medical pass, stating that he intended to use the pass to go home and get his medicine or see his doctor. He did not say what medicine he needed or what his ailment was. Gipson then returned to the maintenance department, where he told King that he was in pain and needed to go home and get his medication. King told Gipson that he could not leave "until we take care of business." King's supervisor and the plant's HR manager arrived, and again ordered Gibson to retrieve his belongings from the HR lobby. Gipson declined, stating that he had a "very bad headache." Gibson acknowledged that he was given a direct order to move his belongings and did not comply. He was terminated for insubordination. 

Gipson left the plant and drove appoximately 30 miles to his doctor's office. Once there, he did not receive immediate medical attention. Rather, he made an appointment for a date three weeks in the future. He then went home. 

The Lawsuit

Gipson filed suit in Tennessee state court alleging that Vought violated the FMLA by refusing his request for leave and terminating him in retaliation for exercising his FMLA rights. Vought removed the case to federal district court. The district court granted summary judgment for Vought. Gipson appealed. 

With respect to Gipson's claim that Vought unlawfully denied his request for FMLA leave, the Court of Appeals held that Gipson's statements to Vought management were not sufficient to place the company on notice that he required FMLA leave. The court rejected Gipson's argument that his notice was sufficient because Vought knew that he had undergone triple bypass surgery, noting that there was no evidence that Gipson had ever notified Vought of ongoing heart problems or continuing treatment for his heart condition. 

The Court of Appeals also rejected Gipson's retaliation claim, finding that Vought could not have retaliated against Gipson for exercising his FMLA rights because Gipson never gave the company adequate notice that he needed FMLA leave. Rather, the court found that Gipson's insubordination was a legitimate, non-retaliatory reason for terminating Gipson's employment, noting that "an employee may not insulate himself from a pending dismissal by opportunistically invoking the FMLA."

Insights for Employers

1. Claiming illness is not by itself sufficient notice of FMLA leave. The FMLA regulations are quite clear that an employee must do more than "call in sick" or claim illness to put the employer on notice that he or she needs leave due to a serious health condition. This case might have had a different result had Gipson stated that he needed leave to see the doctor due to his heart condition. However, because his gave no specific reason for his requests to leave work, he failed to give adequate notice under the FMLA.
2. When in doubt, ask. While this case turned out well for Vought and illustrates the limits of the FMLA, the company may have narrowly dodged a bullet here. Had Gipson provided slightly more information - or even if he later claimed that he had done so - this case could easily have come out differently. In close cases, when an employee asks for leave due to a health condition, employers should strongly consider inquiring further to determine whether or not the FMLA applies to the leave.
3. The FMLA is not a shield. All too often, employees facing discipline or termination will use laws such as the FMLA in an effort to shield themselves from the consequences of their poor performance or misconduct. Unfortunately, this puts employers in the difficult position of having to either give the employee a pass or risk a retaliation claim. However, where the grounds for discipline or termination are clear, as in this case, the FMLA will not protect the employee from the consequences of that action. 

Take Joe Lane, a medical technologist for Pontiac Osteopathic Hospital.  Joe, who lived with his mother, sought and was granted FMLA intermittent FMLA leave for six months to care for his mom, who suffered from diabetes, high blood pressure, weight loss and arthritis.  He needed leave from time to time to provide her food and transport her to doctors' appointments, which he did without issue for the next four months.

For Joe, when it rains, it pours.  Literally.  Right into his mother's basement.  Joe was absent for four consecutive days and, in violation of the Hospital's personnel policies, he failed to call in his absences.  Thereafter, he informed the Hospital that he would need additional time off to clean up flooding in his mom's basement.  He claimed that the "flood cleaning days" should be excused because his mother had hepatitis and the stagnant water was a "breeding ground" for the disease.  The Hospital disagreed and fired him.

At that moment, Joe's FMLA claims went down the drain. 

1.  Cleaning the flood was not listed among his enumerated duties in the medical certification form;

2.  Joe had not established that cleaning mom's basement met the definition of "caring for" a family member with a serious health condition;

3.  Joe could not show that his mom's hepatitis was in danger of being aggravated if he did not clean the basement immediately; and

4.  In any event, Joe's request for leave to clean his mom's basement failed to put the employer on notice of the need for FMLA leave.

The Impact of the Court Ruling

In recent years, courts have expanded the scope of the "caring for" FMLA leave entitlement, often finding new and, at times, creative ways to afford employees FMLA leave.  The Lane ruling slaps back that expansion, thereby drawing more of a distinct line between those activities that provide "direct" care to the family member (e.g., providing a meal or transport, or sitting bedside) and those that provide "indirect" care (e.g., salvaging mom's basement).  Although the former regularly qualify for FMLA leave, the latter typically do not.

That being said, one is left to wonder whether Joe would have fared better (either at work or in court) had his request for a 3-day absence not come on the heels of a 4-day unexplained absence.  Could Joe have better articulated that his "direct" care for mom was so intertwined with the "indirect" duties that they are inseparable?  We're left to wonder.

Insights for Employers

The Lane decision reminds employers to seek answers to the following when determining whether an employee is "caring for" a family member under the FMLA:

• Has the employee put us on notice of the need for FMLA-qualifying leave (as opposed to a general leave of absence, which may not be protected by law)?
• Are the "caring for" responsibilities identified by the employee in this instance enumerated on the latest medical certification on file?  If not, do we have an obligation to seek recertification?
• What is the harm to the family member if this assistance is not provided?
• Can the family member perform these "caring for" duties him/herself?
• Are the responsibilities to be performed on this occasion so intertwined with other duties in which we previously have allowed FMLA leave? 

 Thoughtfully thinking through these questions will help you avoid the flood, whenever it comes.