In Knox v. City of Monroe, No. 07-606, 2009 U.S. Dist. LEXIS 1014, at *18 (W.D. La. Jan. 8, 2009), the court rejected the employee's FMLA interference claims based on supervisor's alleged failure to warn her that she could be fired for excessive absenteeism if she did not protect herself by requesting FMLA leave. The supervisor warned Knox that she could be disciplined if she continued to incur excessive absences. He also offered KnoxFMLA leave, which she specifically declined. The court opined that the supervisor "had no duty under the FMLA to threaten Knox with discharge, so that she could preemptively claim FMLA protection."
Comment: Employees who decline an employers suggestion of FMLA leave have not fared well in the courts when they subsequently challenge attendance-based discipline. Employers satisfy their FMLA notice requirements by recognizing that a situation my involve the FMLA and alerting the employee to the availability of FMLA leave. Where this has occurred, an employee who nevertheless declines FMLA protections, perhaps in an effort to stretch the amount of leave available, is exposed to discipline. Of course, the employee might argue FMLA retaliation. Such an argument was advanced, and rejected in Knox. Basically, the court found that Knox did not engage in protected activity where she specifically declined FMLA protections. The court did not credit her somewhat vague comment that she might take FMLA leave in the future (which she never did).
The moral is: FMLA leave is protected from discipline. An employee who affirmatively declines FMLA protections necessarily risks discipline. And an employer is not required to point out that distinction to the employee as part of offering the employee the opportunity to apply for FMLA leave.