Sales rep unequivocally did not exercise FMLA rights

Righi v SMC Corp of Am, ___F.Supp.2d___(C.D. Ill.February 27, 2009), is an interesting case. The court held that a sales rep who emailed his supervisor requesting "a couple days off" to make arrangements for his mother, a diabetic who was hospitalized due to an insulin overdose, could not establish an FMLA interference or retaliation claim after his employer discharged him for violating the company's call-in policy because he never requested FMLA leave.
Significantly, in the email, the rep expressly stated that although he could apply for FMLA leave (referring to it as the "family care act"), he did not want to at this time. Instead, he asked for vacation time. Upon receipt of the email, the supervisor made several unsuccessful attempts to contact the rep, who admitted turning off his company-issued cell phone. Eight days later, when he finally made contact with his supervisor, the rep was fired. According to the company's attendance policy, failure to report to work for more than two consecutive days without notifying a supervisor is grounds for discharge, and the rep's email said he would be gone for only "a couple of days."
While the rep alleged that his email referencing the FMLA was sufficient to put his employer on notice that his absence was covered by the Act, the court disagreed. Additionally, the employer was not required to ignore the rep's unequivocal statement that he was not interested in applying for FMLA leave.

This is a harsh decision and demonstrates how important a knowledge of FMLA rights are.

Mitchell H. Rubinstein