FMLA Insights - Guidance & Solutions for Employers

When an employee's request for medical leave is vague or is unclear, the Family and Medical Leave Act regulations specifically allow (in fact, they require) the employer to question the employee further to determine whether the absence potentially qualifies under the FMLA.  When the employee fails to respond to these reasonable inquiries, the employee may lose the right to FMLA protection. 

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. 

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In a recent post we reviewed the rules relating to posting and publishing the DOL's "General Notice" poster. Among other things, the FMLA rules require employers who have a significant number of employees who do not read English to publish the notice in a language in which the employees are literate. The DOL has a version of the poster available in Spanish, but (as I confirmed with a call to the Department today) not other languages. To make matters more difficult, so far I have not been able to find a vendor who can provide the poster in any other language. 

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. 

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).

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