November 12, 2019

FMLA Case: Now, THAT’s Called a Clue!

When an employee comes to you, not just three, but seven or eight times worried about her mental status, crying bouts, inability to sleep and questioning what’s wrong with her – that’s called a clue! The FMLA bells and whistles should be going off (maybe a few ADA sirens, too).  This is the crux of why the employer lost this case.

The employee was an administrative assistant in a school system. She had worked there for six years, been recently promoted, had no prior corrective action and her work was described by her employer as “immaculate.” But shortly after her promotion, she began having trouble. She was leaving work early due to crying bouts, was having trouble sleeping, eating and was losing weight. She went to her boss at least seven times. She expressed concern about her physical and mental status, suggested she might need to time off for medical reasons, and asked to be put on a ten-month rather than 12-month schedule (twice). Her boss denied the request to switch to a ten-month schedule.  Not knowing what else to do, the employee resigned…and sued for FMLA interference.

A jury found in the employee’s favor. The employer appealed claiming no reasonable jury could find: (1) the employee was entitled to FMLA leave; or (2) that she had provided the employer with sufficient notice of the need for leave.  You know where this is headed, right? This might make a great case study for your management training!

FMLA Entitlement: The judge noted that an employee is entitled to FMLA leave if (1) she is afflicted with a “serious health condition,” and (2) that condition makes her unable to perform the essential functions of her position.  Employer loses: The judge found, “The evidence in this record was sufficient to support the jury’s finding that [the employee] had a serious health condition…[and] that because of her serious health condition, [she] was unable to perform the functions of her job.”

Sufficient Notice: The judge found the employer had both actual and constructive notice. “[C]lear abnormalities in an employee’s behavior may be enough to alert the employer to a serious health condition…’observable changes in an employee’s condition… present an obvious need for medical leave, thereby obviating the need for an express request for medical leave.”

Lessons Learned?

Clue #1: When your employee has to leave work early due to crying jags, it is reasonable to think something might be wrong. You might give her the FMLA Notice of Eligibility and Rights along with a medical certification form.

Clue #2: When your employee meets with you two or three times, not to mention seven or eight, and tells you about abnormal physical and mental conditions,  ponders what is wrong with her and cries, you might give her the FMLA Notice of Eligibility and Rights along with a medical certification form.

Clue #3: When you employee expressly tells you she thinks she might need time off from work due to a medical condition, you might give her the FMLA Notice of Eligibility and Rights along with a medical certification form.

Fun Fact: The employee did not see a doctor or receive any medical diagnosis until after her last day of work. But that did not excuse the employer. The judge noted, “we have found that an employee does not need to be diagnosed during her employment, as long as the condition existed then.”