Was calling in sick enough to trigger a leave offer?
October 22, 2008 by Sam NarisiPosted in: FMLA, In this week's e-newsletter, Latest News & Views
HR pros know employees don’t need to say “I need FMLA” to get offered medical leave. But how much information do managers have to receive before they’re expected to get the ball rolling?
In one recent case, an employee missed several days of work after calling in sick. She’d used up all her PTO and began racking up unauthorized absences.
Eventually, she came to her boss with a doctor’s note explaining that she needed FMLA for a serious health problem. The request was granted.
But when she returned to work, she still had a problem: Before she asked for leave, she’d accumulated those unauthorized absences and was in danger of being fired if she missed any more time.
She sued the company, claiming the absences should be retroactively counted as FMLA, giving her a clean attendance record.
The court disagreed, and ruled in favor of the company. Why?
She eventually gave the company enough information to qualify for medical leave. But for all the absences before that, simply calling in sick wasn’t enough to put her boss on notice that she might need FMLA.
To be aware of the need for leave, the company must get enough information to to “alert the employer to the seriousness of the health condition.”
Cite: de la Rama v. Illinois Dept. of Human Services
Tags: call in sick, FMLA, sufficient notice
October 22nd, 2008 at 6:48 pm
[...] Was calling in sick enough to trigger an FMLA offer? By Sam Narisi HR pros know employees don’t need to say “I need FMLA” to get offered medical leave. But how much information do managers have to receive before they’re expected to get the ball rolling? In one recent case, an employee missed several … HRLegalNews.com – http://www.hrlegalnews.com/ [...]
October 30th, 2008 at 10:37 am
I thought the rule of thumb was three days absent and HR should ask if they need FMLA?
October 30th, 2008 at 4:35 pm
Again, the article leaves out much relevant information in order to appreciate the meaning of the ruling. The employee took off sick and when she returned asked for FMLA protections. The company granted the FMLA protections, but when she returned to work, she “was in danger of being fired if she missed any more time.” She was not fired or had any other job actions against her violating the FMLA protections. So the employee sued claiming “the absences should be retroactively counted as FMLA, giving her a clean attendance record.”
First, the employer granted FMLA protection and so she could not be fired for the time she took off.
It is ludicrous to think that she was suing for the time she took off be counted as FMLA. She already had the job protection and if they did not count it against her annual 12 weeks, then the company loses, not her. She was suing so that “she would have a clean attendance record.” The court decided that she did not have a clean attendance record. The court found that “she eventually gave the company enough information to qualify for medical leave. But for all the absences before that, simply calling in sick wasn’t enough to put her boss on notice that she might need FMLA.”
Actually, the only thing she needed to tell her boss when she called in sick was that she was in the hospital, or pregnant, or that she was being cared for by a healthcare provider and was incapacitated for three consecutive days. Had she done that, the company was on notice. This ruling also falls short when considering an employee who is unable to call their employer due to the incapacity (ICU unit at a hospital).
Also, if her medical condition persisted and resulted in another period of incapacity or ongoing treatment, the FMLA protections granted previously would still apply. The employer could require recertification, but that is about the extent of what the employer can do.
It appears that the following checklist might be helpful:
If the employee informs the following, then the company should know that FMLA job protections are applicable.
__ An overnight stay in a medical care facility.
__ Three consecutive calendar days where they could not work, attend school or perform other regular daily activities that involves treatment by a health care provider and a regimen of continuing treatment.
__ Anytime they are unable to work, attend school or perform other regular daily activities due to pregnancy or prenatal care.
__ Anytime they are unable to work, attend school or perform other regular daily activities and are under the continuing supervision of a health care provider and treatment may not be effective.
__ Any period of absence to receive multiple treatments (including any period of recovery) on order by a healthcare provider that would likely result in a period of inability to work, attend school, or perform other regular daily activities for more than three consecutive calendar days.