Employees who require leave under the Family and Medical Leave Act must put their employer “on notice” of their need for leave. To do so, they must provide enough information for the employer to determine if the FMLA could apply.
If the information is not sufficient, employers are expected to ask for details.
This raises the questions of exactly how much information employees should provide and at what point the employer should ask for more details. Two recent court cases addressed this issue.
Not enough notice
In the first case, an employee was terminated after failing to meet sales goals. She sued, claiming she was denied FMLA leave to care for her parents (her father had leukemia and her mother had kidney disease). The employee had mentioned her parents’ health to her supervisor, and took a few days off for their medical appointments, but she never requested leave, saying only that she might need time off in the future.
The employer’s FMLA policy stated, “You must request leave from human resources, not your manager or anyone else.” The court found that when she asked her supervisor for time off, she requested non-FMLA leave, and failed to provide sufficient notice of a need for FMLA leave. (Nicholson v. Pulte Homes Corp., 7th Circuit, No. 11-2238, Aug. 9, 2012)
Sufficient notice
Employees who take leave for their own conditions may be unable to give notice until after leave begins, as happened in the second case.
An employee with an undiagnosed anxiety disorder expressed concern about working in a new unit, but was told she had “no choice.”
She brought her concerns to HR, but had a panic attack during that meeting, and the HR director told her to go home.
The following day, she saw her doctor, who advised therapy, prescribed medication, and recommended time off. When she informed her employer, she was given forms to request FMLA leave, but was terminated the same day for job abandonment. A lawsuit followed.
The employer argued that the FMLA did not apply because she quit and was no longer employed. The court disagreed, finding that her absence was triggered by her condition, and noting that the HR director advised her to go home. Therefore, she had put the employer on notice. (Clinkscale v. St. Therese of New Hope, 8th Circuit, No. 12-1223, Nov. 13, 2012)
Communicate and ask questions
In both cases, the employees thought they provided notice of their need for FMLA leave.
Neither of the cases indicates whether the employer requested further information, or even reminded employees of how to request FMLA leave.
Had the employers requested details, or explained their requirements for requesting FMLA leave, they may have avoided the question of whether they were “on notice.”
The key to remember: Employees aren’t the only ones with responsibilities in communicating a need for FMLA leave. Employers must gather enough details to determine whether leave qualifies for the FMLA’s protections.
Ed Zalewski is an editor at J. J. Keller & Associates, Inc., a nationally recognized compliance resource company that offers products and services to address the range of responsibilities held by human resources and corporate professionals. Zalewski specializes in employment law issues such as discrimination and harassment, overtime, exemptions, and labor relations.
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