In Righi v. SMC Corp. of America, No. 07-cv-1064, 2009 U.S. Dist. LEXIS 15429 (C.D. Ill. Feb. 27, 2009), the employee requested leave to care for his mother, a diabetic who was hospitalized after accidentally took an overdose of mediation. At the time, SMC was aware that the employee was caring for his mother due to her medical condition. SMC had approved leave for this purpose in the past. As a result of his mother's overdose, the Righi requested "a couple of days off" to make medical care arrangements for his mother. In the e-mail requesting leave, Righi mentioned that, although he could apply for FMLA leave, he did not want to do so at this time. Instead, he asked for vacation. On receipt of the e-mail, SMC made several unsuccessful attempts to contact Righi. Righi admitted later that he turned off his cell phone for a week. Righi was subsequently terminated for violating SMC's call-in policy. Righi sued alleging interference with the FMLA.
Righi argued that his e-mail message referencing the FMLA was sufficient to place SMC on notice that he was, in fact, asking that his absence be covered by the FMLA. In rejecting the argument and awarding summary judgment to SMC, the Court found that the burden of inquiry never shifted to SMC to determine if the absence might be covered by the FMLA. The Court found that SMC was not legally obligated to ignore the employee's own statement that he was not interested in applying for approved FMLA leave to cover his absence. Nor was SMC required to persuade an employee to take FMLA leave where the employee has indicated they do not wish to.
Comment: Employees who seek FMLA protections after they have knowingly elected not to exercise their FMLA rights (in order to preserve the ability to use FMLA leave in the future) have not fared well in the courts. To get over this high hurdle, employees would need to show that, for example, the employer failed to satisfy its notice requirements, or that the employer otherwise misled the employee regarding FMLA rights and responsibilities.
The case is a reminder that an employee who decides to use non-FMLA leave in order to preserve it for future use risks discipline.