The latest pitfalls of FMLA’s ’sufficient notice’ provision
April 4, 2008 by Sam NarisiPosted in: Benefits Law, FMLA, Special Report
FMLA law provides more than its fair share of headaches for HR managers. And figuring out when an employee has provided “sufficient notice” of the need for leave is definitely one of them. But here’s some help for sorting out this legal mess.
Under the Family and Medical Leave Act (FMLA), employees don’t need to say “I need medical leave” to trigger your obligation to offer it to them. All they have to do is let you know they’ve got a serious medical issue that might qualify them to take leave. It’s up to employers to take the next step.
Sounds simple, if an employee comes to you and says, “I have a serious medical condition and need some time off” - but things are rarely that easy. Here’s some clarification on situations should trigger employers to take action.
Words
In one recent case, an employee sued, claiming he was denied time off that he needed to get treatment for a serious case of anxiety. However, he never asked for leave, and, the company said, no one ever knew that he needed it. At one point, he went to the HR manager and told her he was “feeling stressed out” and “didn’t know what to do.” The employee claimed that was enough to trigger an offer of leave.
But the judge disagreed. He said that feeling stressed out is a common workplace ailment, and the company had no way of knowing how serious the man’s case was (Cite: Lackman v. Recovery Services of New Jersey, Inc.).
So when do you need to offer leave? One key is getting more specific details about the medical condition or a need for treatment. In that example, if the employee had been more specific than saying he was “stressed out,” he may have had a case. Similar rulings have come down in cases where employees said they were feeling “depressed” (see: Rask v. Fresenius Medical Care North American).
In another case, though, the court ruled that when a man told his supervisor that he had to wear a heart monitor and would likely need to have heart surgery, that was enough to trigger action by the company (Cite: Sarnowski v. Air Brooke Limousine, Inc.).
Behavior
It isn’t just what employees say that triggers FMLA obligations. Behavior can do it, too. Take this case, for example:
A woman was fired after missing several days of work. One day, she saw a dog in the company parking lot, started screaming and cursing, and left the office abruptly. For the next few days, she called out sick. Then her sick days ran out and she started taking days off without approval. The company fired her.
But she thought she should have been offered FMLA. While she was out, she saw a doctor, was diagnosed with severe anxiety and given medication. The company didn’t know that, so it claimed it had no legal obligation.
The court ruled for the woman, claiming that her strange behavior, combined with the fact that she started calling out sick, was enough to let the company know that she had a serious medical condition (Cite: Stevenson v. Hyre Electric Company).
No easy way out
The rules about FMLA notification may be confusing, but one thing is clear: Employers can’t make their own rules that ask more from employees than the law does.
Some companies have tried to mandate that employees submit FMLA requests in writing before any leave is offered, but those policies haven’t held up in court. If the law doesn’t require it, neither can employers.
April 21st, 2008 at 1:44 pm
Our federal legislators seem quite adept at crafting laws and regulations that are vague, confusing and difficult to implement. We employers are expected to act “reasonably” when FMLA notification or other issues arise. Without clear and specific guidelines for determining sufficient notice, we are expected to be mind-readers when employees mention an ailment or behave in an unusual manner. So does this mean when an employee tells me “I’ve been tired lately”, I’m supposed to wonder if this is notice of a potential FMLA request for time off? If an employee who is normally talkative suddenly becomes quiet, should I interpret this as a sign of depression and a need for time off?
Why can’t employers set their own rules or guidelines for what constitutes sufficient and adequate notice? Is it too much to ask that employees or a responsible adult acting as their agent be required to call their supervisor to request time off and provide a specific reason and supporting documentation for the request?
Heaven forbid if common sense should play any role in this. Instead, we have to pay lawyers to figure out what the laws mean and waste more time and money arguing a law’s interpretation in court.
April 23rd, 2008 at 1:09 pm
Jeff M. has stated quite articulately the bind that the vague and often misleading FMLA notification requirements put employers in. I do not have a degree in psychology or medicine, but am expected to interpret subtle behaviors and other indicators that an employee MIGHT be eligible for FMLA? Employee accountability would be a refreshing piece of reform to our current standards. Well stated, Jeff.
April 23rd, 2008 at 2:04 pm
I agree with Jeff and Colleen. Unfortunately FMLA is just like every other government interference with organizations - there are always people that find a way to take advantage of it!
April 23rd, 2008 at 2:21 pm
We, as employers, do not have to read minds or have a degree in psychology or medicine. All we have to do is keep a log of every word any employee ever says to us and have all supervisors do the same. Then, any time any employee calls in to say they are sick, or just does not show up, we simply have to check all of those logs to see if that employee said anything to anyone at any time that might have something to do with their absence. Now, how ridiculous is that??
April 23rd, 2008 at 2:35 pm
When I read that last example all I can think is, “When did HR become people’s parents?” That outcome seems completely ridiculous. Another fine example of laws being made by people who have no concept about the reality of what they are imposing.
April 23rd, 2008 at 3:14 pm
As a Staff Coordinator the most important thing that I have learned over the past 10 years is NEVER assume employees have common sense. I have learned to ask questions and follow up questions and specific questions. Oh yeah and to document…document…document….
April 24th, 2008 at 3:33 pm
I’m at a small company and need to learn more about the FMLA requirements.
Do employees need to apply for FMLA (intermittent or full time)? What has been discussed here appears to apply to an employee who is already qualified for intermittent FMLA and is not notifying their supervisor when taking time off.
Does this problem also apply to a person who has not applied for FMLA? It has recently come to my attention that an employee has used almost all of his vacation/sick time over the past year due to an illness. His supervisor has been aware of this but never mentioned it to HR. Should this employee have been notified of FMLA as a posibility?
I’ve discovered that when he is out sick or at a doctor’s appointment, when he has no paid time off available, his supervisor requires him to make up the work at night or on weekends. This seems fine because he’s able to earn his weekly paycheck this way but I’m not sure if this is his preference or his supervisors.
Any suggestions appreciated. As you can tell, I’m new to this and (fortunately) am not the person running the HR department…maybe someday.
I was in the process of looking into FMLA when I received this HR Legal Newsletter in email. Quite a coincidence.
April 25th, 2008 at 10:28 am
Kathleen,
As I’m sure you know, FMLA is tricky, especially if it’s something you’re new to. But here are some of the things to keep in mind at first:
1.) You mentioned you’re at a small company – the law only applies to employers with 50 or more employees (if you’ve got multiple locations, that’s 50 or more employees within a 75 mile radius). Also, to take FMLA leave an employee must have been with the company for at least a year, and have worked 1,250 hours in the year leading up to the leave. So you have to keep those things in mind when deciding if the employee is eligible.
2.) Not all illnesses are covered by the law, though the law does mention treatment for a “chronic serious health condition” as being covered. Employees also need to get “medical certification” to prove they need leave. You can read that part of the law here: http://www.dol.gov/dol/allcfr/ESA/Title_29/part_825/29CFR825.114.htm
That said, if the employee is eligible for leave, the safest bet might be to discuss the possibility. As the law says, “The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed for an expected birth or adoption, for example. The employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken.” (http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.302.htm).
Another thing to keep in mind is that one thing employers definitely can’t do is give someone FMLA leave AND require them to make up the time that they miss.
Sounds like you got the newsletter at the right time. Hope we’ve helped clear some things up – I know it isn’t easy! Feel to send over any questions that you have.
Sam Narisi
Editor
HRLegalNews.com
April 25th, 2008 at 10:40 am
Sam - Thank you, thank you, thank you. You’ve given me a great deal of information and the government website will be a great assist. We are a small company but not small enough to be exempt from FMLA.
Thanks again, I’ll keep reading the newsletter for all the great info.
Kathleen
April 25th, 2008 at 2:20 pm
I don’t understand what the big issue is here. I am the go-to person for FMLA for a facility of over 1000 employees in this area and if someone started calling out sick I automatically send them a letter stating that their absence may qualify for FMLA and send the paperwork as well (that is if they are an eligible employee as mentioned by Sam N.) It takes two seconds to send out a FMLA notice and start the clock on the 15 days which is the same amount of time it takes to send out a termination letter. Personally, I don’t find the notification provisions all that confusing when you treat all employees the same… unless the employer is intentionally trying to fire someone. Just some thought from another perspective.
April 25th, 2008 at 2:22 pm
This is good stuff. Thanks for putting this out for us practicioners.
We’ve all seen “dog in the parking lot” scenes but didn’t followup
for various reasons, like privacy issues. But such incidents should
trigger a warning in our minds that something else could be going
on and perhaps do a low-level inquiry with their supervisor about
other signs. Thanks, J.B.
June 4th, 2008 at 11:08 am
All great information. If you had someone that was absence - spouse called them off of work indefinitely - you receive a 1/4 size sheet of paper from a doctor simply stating Out of work indefinitely. You forward FMLA and STD papers to the individual and they are now out for 5 weeks and they still have not returned any completed information to you - is it alright to terminate based on the fact that we provided paperwork but the employee has failed to complete and return requesting the leave - so we cannot consider them on FMLA?
June 10th, 2008 at 11:13 am
Barb,
Generally, to be eligible for leave, employees must submit the medical certification within 15 of receiving the forms.
Sam Narisi
Editor
HRLegalNews.com
June 18th, 2008 at 10:28 am
All of this is EXCELLENT information. I am also, like Jennifer W., the go-to-person for FMLA for our organziation. I agree that it is fairly simple to send out a letter with the required forms — but my heartburn is getting the supervisors to inform me that a person has been off work for the minimum three day trigger-time. I do not have access to payroll or attendance information, so am finding it difficult to gain this information. Again, it goes back to making the supervisors and employees accountable for providing the information WE need to get them what THEY need!
June 20th, 2008 at 8:12 am
This is great information. It turns out that the company that I handle HR for is less then 50 employees. In that case, what is the law for an extended need for illness? Is it Disiblility?
Thanks in advance,
June 20th, 2008 at 8:34 am
Debbie,
Yes, you aren’t covered by FMLA, but if an employee has an illness that would be considered a disability, then the Americans with Disabilities Act might require you to give temporary leave as a “reasonable accommodation.”
Sam Narisi
Editor
HRLegalNews.com
July 30th, 2008 at 12:41 pm
An additional piece of important information is: if you are in California FEHA, Fair Employment and Housing Act, and CFRA, California Family Rights Act, and Pregnancy Disability Leave are less stringent than FMLA. For instance, the number of employees an employer must have, I believe is less than 50. So if you are in California be sure to do research beyond FMLA.
August 6th, 2008 at 10:18 am
Does the employee have all the control over their FMLA? Once they are approved by their physician they just call in and state “I need today off and this is FMLA related” and we have to just assume that’s correct? The abuse being done by this law is incredible in the work place and the employers have no choice or say? The employee who has intermediate FMLA for depression shows up and gets stressed and leaves at least four or five times a month until they hit their 12 weeks and they don’t have to prove anything. I don’t see how this is fair.
August 6th, 2008 at 1:37 pm
I have been looking for information and ran across this article and resulting comments.
I can see where this is very confusing and not all instances are covered in the Act (FMLA).
Am I to understand from comments above, that if a person becomes eligible for FMLA a couple months after they have been out on an L&I claim they should be put on FMLA leave at that point? Also, if the person was given all the FMLA paperwork and never completed the “request” form or turned in the “doctor’s certification” are they considered to be on FMLA anyway? What if the person said they do not want to use FMLA (I think because they did not fully understand it - even though I explained it more than once)? If they never turned in the doctor’s certification and so are not on FMLA, can they do so at any time now, even though they have been out for over 5 months? In this case they would be out on L&I for over 5 months and then another 3 months on FMLA (if the doctor certifies that they need the additional time) and all along the company is paying their medical insurance premiums. This is not a case of wanting to get rid of the person - we would welcome them back to their former position - but how long is long enough before we notify them they are terminated? I must say that pregnancy related FMLA is pretty straight-forward in my experience. But this present case is really causing me headaches - I don’t know whether to just wait it out or to terminate.
September 3rd, 2008 at 5:50 am
I have been searching for info on FMLA intermittent amount of notice for an emergency healthcare appointment, I had a micro preemie and have been harassed since birth I just also have had to have it for my son which I rarely have used and only got it as I have been refused to take him to the Dr several hours away for testing from a serious accident. I gave a 3 day notice on my preemie and got told that wasn’t sufficient and have been getting emails since this all started over a year ago. There was plenty of people on my shift as I myself have worked alone people giving no notice and taking FMLA for a family member they didn’t even take care of her visit as well as they were given extra days off for funeral leave that our facility only does if it is a parent as well as one took immediate FMLA for birth of girlfriends chid that is married to another man and it just goes on and on in the dept but someone truly needing it I am constantly bothered and my preemie will have specialty appointments I schedule them for my days off well then my schedule is changed and or I am demanded oncall I am one of the most senior in my department and honestly think due to my pay as all are new grads mostly at least not the years of experience I am being singled out, I welcome any advice. Thank You for any feedback also I never call off ill, I am very dependable. I didn’t want this situation and I have not abused it, actually we have had no support from any coworkers during this situation but they sure pull together to have parties for others this isn’t a party but I think that some support from my superior or even a card from the staff would have been nice. It has been a long year and this harassment emails I get just make it worse. I look forward to feedback. Thanks!
September 17th, 2008 at 2:08 pm
our company only has 9 employee’s and we have been told that we do not qualify for the family leave act. Is this true.
September 18th, 2008 at 8:47 am
Yes, that is true. If you do not have any other sites within 75 miles of yours, you are not an eligible employer…
See Eligibility below…
Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.
September 24th, 2008 at 3:09 pm
I was also wondering, like Marge , how long is it before you can terminate someone who has been given extended time for FMLA by their doctor and also those who arent.
October 15th, 2008 at 6:41 pm
To Kathy’s comments. When the 12 weeks is exhausted and the employee has not presented a fit-for-duty medical certification, then they may be terminated, with a polite invitation to re-apply when they are cleared to return to work. If there is still a position open for them, then in the company’s interest the leave could be extented beyond the 12 weeks. If the extension is a couple of weeks and the employee is not easily replaced, it seems prudent to extend the leave (obviously not beyond what would be reasonable). If there is no open position, then terminate. This assumes that there are no other factors involved in the situation.
November 3rd, 2008 at 3:45 pm
I am an employee at a large foods co.–Ventura Foods,LLC. Over a year ago I missed 3 days of work due to Sudden Hearing Loss. I lost all hearing in my left ear, and my sense of balance has been greatly diminished. I had to have MRI tests run and go for several follow up visits, resulting in even more missed work. I am now needing to go in for another follow up appointment.
My question is–should I have been alerted to the possibility of FMLA? No one ever mentioned it, and I have been accumulating a lot of “occurances” under the co.’s attendance policy.
If I had taken FMLA I would have accumulated zero points under our attendance policy–so was I ineligible??? Is it too late to correct this if I was eligible??
November 12th, 2008 at 12:22 pm
Nancy, we require a doctor’s excuse for any time out for intermittent leave to be covered. If they are under FMLA their doctor should know if their condition is serious enough to warrant days of now and then when the condition flares up. So they should be able to call their doctor and receive and excuse if they can not make it to work for a day or two.
This is all after they have turned in their initial medical certification.
November 12th, 2008 at 1:32 pm
The company where I worked had more than 50 employees but there was less than 50 people at the location where I worked. The employee handbook included the following: “Because there are not 50 employees that work at many of their facilities, they are not legally required to comply with FMLA at those locations. Nonetheless, the company will offer the same FMLA leave to those employees.” When I needed time off and provided them with a note from my doctor, the company automatically provided me with paperwork (Employer Response to Employee Request for Family or Medicla Leave) and checked the box that says, “You ARE eligible for leave under the FMLA.”
Upon my return, I was “let go” and believe it was in retaliation for my taking leave so I hired a lawyer. The company is now saying since there is less than 50 employees at my location there is no jurisdiction for a claim under the FMLA. They are also saying I was given a great benefit to which I was not otherwise entitled under the law and to now threaten legal action is disingenuous and will not be well taken by the court.
Does anyone have any experience or feedback regarding this situaion?