“FMLA” is not a magic word
Does an
employee have to invoke the letters “F-M-L-A” for an employer to offer it? Or,
what if an employer fires an employee who misses work because of an
FMLA-qualifying illness for which FMLA-leave was not offered? Has the employer
violated the statute?
In Festerman v. County of Wayne (6th Cir. 5/8/15) (h/t: Eric Meyer), a police officer felt chest pains at left work
for the emergency room. Five days later, he submitted an incident report, and,
a day after that, a doctor’s note that stated, “Patient is advised to limit
working hours to 8 hrs/day.” At no time, however, did the employee specifically
request FMLA leave, or invoke the statute for his time off from work.
The 6th
Circuit concluded that neither the hospital visit nor the doctor’s note were
individually sufficient to place the employer notice that the employee
qualified for FMLA leave. However, the court concluded that, presented with the
total picture, a fact issue existed as to whether the FMLA covered this
employee’s leave.
This
Court is confronted with a doctor’s note that expressly discloses a requirement
of limiting the employee’s work hours per day, but fails to disclose the
condition that gives rise to this requirement or any additional prescribed
treatment. Consequently, the doctor’s note submitted by Festerman, in
isolation, may not have provided sufficient notice to Wayne County of a
qualifying condition under the FMLA. The circumstances surrounding Festerman’s
initial qualifying leave, however, provided additional context to the doctor’s
note and are evidence that Festerman’s superiors were aware of his potential FMLA-qualifying
condition….
Given
Wayne County’s knowledge of a serious health-related incident that occurred in
the workplace and the doctor’s note which advises that Festerman’s workday
should be limited to eight hours per day, a reasonable jury could find that
Festerman provided sufficient notice to Wayne County of a FMLA-qualifying
serious health condition.
I’ve previously discussed how an employer should handle an
employee’s potential or questionable request for leave under the FMLA.
If the
employer fails to treat the request as one for FMLA leave, the employer
assumes all of the risk. If the employer is wrong, and the employee was
requesting FMLA leave, an employer is severely limited it its ability to defend
an FMLA interference lawsuit.
If,
however, the employer treats the request as one for FMLA leave, the employee
assumes all of the risk. The FMLA provides an employer tools to verify the
legitimacy of the request. The employer can (and should) require that the
employee provide a medical certification justifying the need for the FMLA
leave. Moreover, if the employer doubts the initial certification, it can
require a second (and, sometimes, even a third) medical opinion. If the
employer ultimately concludes that the leave does not qualify under the FMLA,
it can retroactively deny the leave and treat all intervening absences as
unexcused, which usually results in termination.
In
other words, employers, err on the side of caution. Use the FMLA’s checks and
balances. When in doubt, offer conditional FMLA leave, and confirm with
the statute’s medical certification process. And, just, as importantly, train
your supervisors to recognize a potential FMLA issue so that they do not get in
the way of this process working.
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