Employee didn’t decline FMLA rights after all

by on December 12, 2011 · 0 Comment POSTED IN: HR Cafe
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Employees can waive their right to FMLA leave, but you need to be sure they’ve actually done so. That’s the point that emerges from a recent case in Illinois.

An employee left work without warning to attend to his diabetic mother, then e-mailed his supervisor that he needed “a couple of days off” to arrange her care. To cover his time off, he wrote, “I do have the vacation time, or I could apply for the family care act, which I do not want to do at this time.”

For the next nine days, the employee remained incommunicado, as the supervisor tried to call him a dozen times. Finally, after the supervisor left a message with the employee’s roommate, the worker went to the office and was fired for job abandonment.

He employee sued for interference with his FMLA rights. A federal appeals court ruled against him, saying he didn’t tell the employer when he’d be returning, as required by the FMLA. But the court also said that, contrary to the company’s view, the employee did not waive his right to FMLA leave. The e-mail said he wasn’t seeking FMLA leave “at this time,” implying he might change his mind and exercise his FMLA rights, the court noted.

Cite: Righi v. SMC Corp. of America, No. 09-1775, 7th Cir., 2/14/11.

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