Regulations enforcing the state and federal Family and Medical Leave Acts (note: FMLA is applicable to employers with at least 50 employees) require an employee to give 30 days’ advance notice when the need for leave is foreseeable, but also address the many situations is which advance notice is not foreseeable, such as a sudden illness or accident.  In those instances, the employee is supposed to give “such notice as is practicable,” at least verbally. The regulations also allow the initial notice to come from an employee “spokesperson,” such as a spouse, if the employee is incapacitated, and to omit the necessary medical detail that would ultimately be needed to  invoke FMLA protections.

So even a brief message in voicemail that the employee was in an accident could be enough to put the burden on the employer to designate an employee’s absence as FMLA-qualifying leave.  If the employer is unsure, the regulations require the employer to inquire further of the employee to get the necessary information to classify the absence as leave, or alternatively to determine that leave can be denied and disciplinary action taken to address the absence.  The regulations even provide for a preliminary designation of leave by the employer, to be confirmed or withdrawn depending on the medical information that is later received.

Given the bias of the regulations toward granting FMLA leave, employers should be wary of a premature decision that an employee’s absence is without leave and subject to discipline.  A serious health condition which involves continuing treatment by a health care provider will qualify an absence for leave protection, and “continuing treatment” can include examinations to determine if a serious health condition exists.  There have been cases in which an employer terminates an employee who is absent because of a doctor’s appointment, claiming that the absence was not protected because it was only an initial examination, and no proof of a serious health condition existed.  But courts have held that such an employer bears the risk that there will be a diagnosis of a serious condition that would have excused the absence, so the employer “cannot avoid liability by preemptively terminating the employee.”

On the other hand, the employer can be liable only if a serious health condition is ultimately found to exist. In a case recently decided in the superior court in Hartford, Ford v. Faith Asset Management, Inc., the plaintiff-employee was terminated because she left work to visit a doctor for an evaluation of a head injury suffered in a fall the previous day.  She claimed that the termination violated her rights under the federal Family and Medical Leave Act.  The defendant moved to dismiss the case because the plaintiff did not plead that she had actually suffered a serious health condition.

The court granted the defendant’s motion because the plaintiff did not allege any specific condition resulting from her injury, or that she was incapacitated for any period, or that she underwent a course of treatment.  No matter much flexibility concerning notice is provided by the FMLA regulations, the absence of an employee who ultimately does not have a serious health condition may be subject to discipline and is not protected by FMLA.  Nevertheless, employers should be cautious when taking action with respect to an employee who arguably may be protected by FMLA.