Most employers recognize that the Family and Medical Leave Act (FMLA) prohibits them from denying, restraining, or interfering with an employee’s rights to qualified leave. Last week’s Update addressed a situation in which an employer’s frequent phone calls to the employee asking when she would return to work while she was on FMLA leave may have interfered with that employee’s FMLA rights. (Terwilliger v. Howard Memorial Hospital). In contrast, this week’s case involves a company whose repeated but unanswered calls to an employee regarding his request for FMLA leave formed the basis of that company’s successful motion for summary judgment in the case. Righi v. SMC Corp. of Am., 7th Cir., No. 09-1775, 2/14/11.

Robert Righi worked as a sales representative for SMC Corporation’s Aurora, Illinois office. Righi worked primarily from his home in Henry, Illinois, but was expected to check in with his sales manager, Louis King, on a daily basis. Righi lived with his elderly mother, an insulin-dependent diabetic who often required medical attention, and a roommate. On occasion, Righi requested vacation time off in order to care for his mother. He made these requests to King by e-mail, consistent with SMC’s policy that required an employee to obtain prior approval from a supervisor before taking leave. The Company’s attendance policy stated that an employee’s failure to report for work for two consecutive days without notifying a supervisor was grounds for termination.

Righi was scheduled to attend a two-week training session in Indianapolis from July 9 through July 21, 2006. On July 11, while at the session, Righi received a phone call informing him that his mother had gone into a diabetic coma. Righi told a co-worker that he was leaving to return home, and asked the co-worker to pass along the information. By the time that Righi had completed the four-hour drive to his home, his mother had stabilized. At no time on that day did Righi contact King, although King made numerous unanswered calls to Righi’s cell phone, which had been switched off.

The next morning, Righi sent an e-mail to King, explaining that he had left the training session to attend to his mother. In that e-mail, he asked for “the next couple of days off.” Upon receiving the e-mail, King attempted to reach Righi, via his Company cell phone and home phone, but without success. King did leave at least one qrequest for a call back with Righi’s roommate, who passed that request to Righi. Righi did not return to work – not did he contact King again – until July 20, nine days after leaving the training session. Righi was fired for violation of the Company’s leave policy. Righi filed a lawsuit alleging violation of the FMLA. The district court granted summary judgment in favor of SMC, and that decision was upheld by the 7th U.S. Circuit Court of Appeals.

Once an employee invokes his rights under the FMLA by alerting his employer to the need for leave, the employer has the burden to take certain affirmative steps to process the leave request. The employer has a duty to make further inquiry if additional information is needed in order to process the request. In this case, there is no dispute that SMC attempted to carry that burden to inquire further – King’s numerous phone calls to Righi’s cell phone and home phone were documented, but were not answered for nine days, far longer than the two days allowed under SMC’s policy. According to the Court, “Righi’s failure to respond to these calls or otherwise contact his employer dooms his FMLA claim.”

While employers have specific obligations under the FMLA which are not obviated by this decision, employers also are entitled to notice about the anticipated timing and duration of a requested leave under the FMLA. Without such notice, Righi was not entitled to FMLA protection for his absence, and his termination was appropriate. According to the Court, if an employee is unable to determine how much leave will be needed, “the employee must at least communicate this fact to the employer with an estimate of the likely duration of the requested leave.” However, employers also should not overlook the fact that the primary underpinning for this decision was SMC’s persistent efforts to reach Righi to clarify his request for leave.