“ Employers need some clue that a serious medical condition is involved.
|
|
|
|
|
 |
FMLA UPDATE
Employer Not Required
To Play “Sherlock Holmes”
To Detect FMLA Leave
By Christopher W. Olmsted
Ideally, when an employee wants to take FMLA leave, he or she should specifically ask for it. But that does not always happen. Sometimes the employer is left guessing. A number of FMLA cases have held that employers are on notice of FMLA leaves when they receive information about serious medical conditions, extended hospital stays, or indication that the employee is too disabled to request leave.
Does this mean that the HR department must take on the job description of Sherlock Holmes, searching for subtle clues of a “serious medical condition” among employees? No, says a recent federal Seventh Circuit case in Illinois.
A Nurse Calls In Sick
Elizabeth de la Rama was a nurse at Chicago-Reed Mental Health Center. Between July and August 2004, she was absent due to illness. She sporadically provided doctor’s notes. In fact, she was diagnosed with fibromyalgia, but did not share this information with her employer. After she used up her sick pay, the human resources department contacted her and told her that if she needed a medical leave, she must make the request in writing and fill out a leave form. She did not respond. She submitted several more doctors notes, but none of them described the nature or severity of her condition.
There were additional absences in September and October. In October, Ms. de la Rama submitted the leave request paperwork, and disclosed her condition. The hospital retroactively granted FMLA leave from September 2, date of her last sick day.
As to the July and August absences, the hospital counted them as unexcused absences. This did not result in an adverse action against Ms. de la Rama, but she was displeased enough to sue. She alleged, among other things, interference with her FMLA rights.
FMLA Protections
The FMLA entitles eligible employees to up to twelve weeks of leave during any twelve-month period if the employee is unable to perform the functions of her position on account of a serious health condition. It also prohibits an employer from interfering with an employee’s attempt to exercise her right to medical leave.
The trial court concluded that de la Rama failed to provide sufficient notice of her intent to take FMLA leave, and it dismissed her claim. Ms. de la Rama appealed, and the federal Seventh Circuit Court of Appeals upheld the trial court ruling.
Employers Need A Clue
Employers need some clue that a serious medical condition is involved. The court focused on the minimal amount of notice an employee must provide to an employer. “Although an employee is not required to refer to the FMLA in order to give notice of her intent to take FMLA leave,” wrote the court, “the notice must succeed in alerting the employer to the seriousness of the health condition.” The court continued: “Calling in sick without providing additional information does not provide sufficient notice under the FMLA.” This is true even if the employee provides her employer with a doctor’s note if the note does not convey the seriousness of her medical condition.
Here the nurse provided doctors’ notes, but they did not convey sufficient notice of potential FMLA coverage. When de la Rama called in sick in July and August, she never indicated that she suffered from a condition that would require an extended period of leave. “The FMLA’s notice burden is not onerous but neither is it illusory,” observed the court. De la Rama did not provide documentation of her fibromyalgia until October 4, 2004. Until that point, de la Rama informed her employer only that she was sick, which is insufficient to suggest that she suffered from an FMLA-qualifying condition.
Exceptions?
There are exceptions. The appellate court noted that it has recognized that in some situations, “an employee may be excused from expressing a need for medical leave,” such as “when circumstances provide the employer with sufficient notice of the need for medical leave.” For example, it has been held that a “dramatic change in behavior” may provide notice of a serious medical problem.”
Ms. de la Rama made the “surrounding circumstances” argument. She pointed out that she had been taken from work to the emergency room in May of 2004. The court determined that the emergency room visit two months before was not a significant enough clue for the employer to subsequently assume the need for FMLA leave.
Don’t Call Sherlock Holmes
“The FMLA does not require employers to play Sherlock Holmes, scanning an employee’s work history for clues as to the undisclosed, true reason for an employee’s absence. There is simply nothing in the record to suggest the kind of ‘dramatic, observable change in [de la Rama’s] work performance or physical condition’ that would excuse her from failing to notify the Department of her need for FMLA leave.
The appellate court therefore upheld the trial court’s dismissal of de la Rama’s FMLA claim.
Practical Tips
Absence Not Notice. Absences from work due to illness, without more, do not put the employer on notice of FMLA coverage.
M.D. Note Note Notice. Doctors’ notes do not put the employer on notice of FMLA coverage unless the note provides information suggesting a serious medical condition as defined by the statute.
Hand Out Forms. When in doubt, an employer subject to FMLA should provide leave of absence information and request forms to an employee experiencing extended absence on account of illness.
The Golden State The California Family Rights Act (“CFRA”) provides similar rights and obligations.
More information:
Attend our Leaves of Absence Seminar scheduled for November 13, 2008. This six hour seminar will cover FMLA, CFRA, and all other major employee leaves. Reserve your seat today.
More Legal Update articles.
Download entire October Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
|
Copyright © 2007 Barker Olmsted & Barnier.
All Rights Reserved. Powered by Infinitude.net Disclaimer.
Privacy Notice. 