Failing To Recognize An Employee's Need For FMLA Leave Can Be A Costly, Painful Mistake

by Franczek Radelet P.C.
Contact

bullhorn.jpgEmployers, can we have a heart to heart?  I need to get something off my chest.  You see, I've witnessed a disturbing trend lately in the court cases I'm reading and in your FMLA practices: too many of you are not recognizing when an employee's leave request may be covered by the FMLA.

Let me share a real life situation that illustrates my point.  

Christine Dollar supervised a bunch of truck drivers at Smithway Motor Xpress. Dollar also suffered from depression. In March, she missed several workdays for some rather ambiguous reasons.  By June, her depression apparently worsened, and she suffered periods of anxiety and insomnia severe enough that a friend took her to the emergency room for treatment.  

Dollar called her supervisor before her shift the following day to inform her employer that she would not be reporting to work that day.  The following day, she called her supervisor again to inform him that she was seeking treatment at a mental health center and had received a doctor's note keeping her off work for another week. Dollar provided her employer this note, which clearly indicated she was being treated for depression.  

Two days later, however, Dollar's supervisor informed her that she no longer would be working in her current position and that the VP of Human Resources would tell her where she would transfer when he returned from vacation -- two weeks later.  Thereafter, Dollar sought several extensions of her leave of absence and provided medical documentation supporting her continued absence. When she could not return to work immediately, Dollar was terminated.

Thud.  That's the sound of the employer smack down after a trial court later found that the employer had interfered with Dollar's FMLA rights when it provided her no FMLA certification form and no notice of her FMLA rights following her request for leave.  Dollar v. Smithway Motor Xpress (pdf)

Insights for Employers

The Dollar case serves as a valuable reminder that we must do a better job recognizing when an employee has put us on notice that the requested absence might be covered by the FMLA.  A few reminders are worth noting:

  1. As an initial matter, when an employee with the last name "Dollar" sues you, be very, very afraid. This is not good karma.    
  2. On a more serious note, as we know (or should know), employees are not required to cite specifically to the "FMLA" as a reason for their absence; a bullhorn also is not necessary. The employee need only provide enough information to indicate that the leave of absence might be covered by the FMLA. If the employee has provided this information, the employer then has an obligation to either inquire further to determine whether the FMLA is in play or provide the employee a notice of her FMLA rights and a certification form.
  3. No. 2 immediately above surely is ambiguous.  I wish the regulations provided more guidance to employers on this point.  But when there is any doubt as to whether FMLA applies, ask questions of your employees!  I've shared before many of the questions you can ask your employees to help you determine whether the absence might constitute FMLA leave.  Access those questions here.
  4. Beware of employees who tell you they are in the emergency room for their own or a family member's medical issue.  Courts differ on whether this alone is enough notice of the need for FMLA leave.  Just last month, for example, a court found in Lanier v. Univ. of Texas Sw. Med. Ctr that an employee's text message indicating that she was in the emergency room with her father was not enough to notify the employer of the need for FMLA leave.  Lanier was a great decision for employers, but I'm afraid it gave employers a false sense of security that will result in lax FMLA compliance.  Notably, just last year, I wrote about another court that found that a similar "emergency room" notification from an employee was enough to put the employer on notice of the possible need for FMLA leave! (Lichtenstein v. University of Pittsburgh Medical Ctr.). So, how a court would handle these "emergency room" situations is as clear as mud. 
  5. Training your managers about their obligations under the FMLA is imperative.  As we see from the Dollar case, even the VP of HR could have used some FMLA training.  The cost of not training your managers in this area of the law is far more severe -- among others, you risk losing a great deal of money in litigation (just ask Dollar!).  Take these obligations seriously and spend the money now to train your managers. 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!