What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the second in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration, you can find our first post here.

Not recognizing employee notice of the need for FMLA leave.

Recognizing an employee’s notice of the need for FMLA leave can be tricky.  When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s need for leave might be FMLA-qualifying, the employer’s FMLA obligations are triggered.  An employee does not have to specifically state, “I need FMLA leave.”  Failure to recognize when an employee might need FMLA leave could result in a claim of FMLA interference.

In a recent case, the court refused to grant an employer’s motion for summary judgment because whether the employee provided adequate notice of the need for continuing FMLA leave was a question of fact to be decided by the jury.  In Francisco v. Southwestern Bell Telephone Co., Civil Action No. H-14-3178 (S.D. Tex. July 25, 2016), an employee needed continued FMLA leave after the employee’s short-term disability benefits ended. While on FMLA leave, the employee had temporarily relocated from Texas to Florida to care for his ill father. Although the employee failed to communicate with his supervisors locally, two facts were key to the court’s decision: (1) the employee updated his contact information while on leave with the company’s corporate office, and (2) prior to the deadline to submit a certification, the employee communicated to the company’s benefits department that he was attempting to comply with the medical certification requirements for additional leave but was unable to do so within the 15-day time frame because his doctor was out of the office due to a medical emergency.  Although the employer argued that the employee did not provide adequate notice because the employee did not communicate with his local management, the court determined that the above two facts created an issue of fact as to whether the employee provided adequate notice his continuing need for FMLA leave.

In Guernsey v. City of Lafayette, No. 4:13-cv-00086 (N.D. Ind. Aug. 12, 2016), the court decided that an employee failed to put the employer on sufficient notice of his potential need for FMLA leave.  The court explained that an employee’s notice obligation is satisfied so long as the employee provides information sufficient to show that the employee likely has a FMLA-qualifying condition.  The employee alleged that the employer know of his chronic pain and absence related to pain for years, but he gave his employer only limited information about his absences.  Doctor notes submitted by the employee did not address the nature of the medical issues, but merely indicated that the employee was “ill,” “seen” by a doctor, and/or should be “excused” from work.  The employee also refused to provide more information about his absences in response to his supervisor’s request.  The employee’s doctor also informed the employer that the employee could return to work to “full activity without limitations.”  Finally, for the last absence leading to termination, the employee simply told his supervisor that his back was “bothering” him.  The court determined that this information, together, did not suggest that the employee’s health condition might be serious or that FMLA otherwise could be applicable.

Case law on this issue is particularly fact specific, and employers should keep in mind that “notice” of an employee’s need for leave can arise under unique fact patterns.  Sufficient notice is also an important topic to include when training managers and supervisors on the FMLA.  Supervisors are often the first individuals within the company to learn of an employee’s potential need for leave, and they should be trained on what could constitute an employee’s notice of the need for FMLA leave, and to promptly follow up with Human Resources, so that the company can meet its FMLA obligations.

Part 1 - Common Family Medical Leave Act Mistakes: What Am I Doing Wrong??

Part 2 - Employee Leave Notice: Common Family Medical Leave Act Mistakes, Pt 2

Part 3 - FMLA Equivalent Position: What Am I Doing Wrong? Common FMLA Mistakes

Part 4 - Counting FMLA-Protected Absences: What Am I Doing Wrong?? Common FMLA Mistakes

Part 5 - What Am I Doing Wrong? Common FMLA Mistakes – the California Edition

Part 6 - What Am I Doing Wrong?? Common FMLA Mistakes

Part 7 - Common FMLA Mistakes: In Loco Parentis Relationships: What Am I Doing Wrong??