Bass Berry & Sims Labor Talk

FMLA – What Information is Sufficient to Trigger Employer’s Duty to Follow Up

Posted in Leaves of Absence/FMLA Law and Practice

Under the Family and Medical Leave Act (“FMLA”), employers face significant challenges in understanding how much information from an employee is considered sufficient to trigger the employer’s duty to follow up. Courts have routinely found that minimal information will trigger an employer’s duty to ask if the employee needs leave and the corresponding duty to seek more information to determine if the FMLA applies. Knowledgeable employers know that an employee does not have to use any “magic language” and does not have to even mention the FMLA or even a need for “leave.” Rather, the employee must provide sufficient information “for an employer to reasonably determine whether the FMLA may apply.”

Some recent decisions address this important issue. In a recent case decided in Michigan, Byron v. St. Mary’s Medical Center, U.S. District Court – Eastern District Michigan, Sept 11, 2012, an employee’s telling her supervisor that she was “too sick to work” and was “going to the emergency room” were sufficient comments to put the employer on notice that the FMLA may be in play. Interestingly, the employer noted that although the employee had pancreatitis, her absences were never more than three consecutive days, meaning that the absences did not qualify anyway. However, the Court noted that given the condition, and the employer’s duty to gather more information, the employer would have learned that the condition was such that her not obtaining treatment would have led to absences in excess of the three-days requirement.

In another recent case, Pagel v. TIN, Inc., the Seventh Circuit ordered that a trial must be held over the FMLA claim of an employee because his admittedly “ambiguous” notice was sufficient. The employee was admittedly “fuzzy” in his recollection about his conversation with the manager, but the manager admitted that he knew about the employee’s chest pain and knew the employee was going to be in the hospital. Even though the employee did not make a demand for “leave,” he did request days off. Thus, explained the Court, the employee was not required to specify that he needed “leave” given that he did request days off. Plus, the Court noted that the employee’s making his employer aware of his need for hospitalization implicitly included making it aware of his need for leave.

In yet another recent case, Nicholson v. Pulte Homes Corp., also from the Seventh Circuit, an employee’s comments to her supervisors about her parents’ poor health was not sufficient to trigger the employer’s duty. The Court noted that the employee had mentioned her parents’ serious conditions but never mentioned her need to take time off to care for them.

Points to consider:

  1.  An employer would be wise to err on the side of asking for more information. What harm comes from an employer asking general questions such as “how can I assist you?” or “do you need something from us?” Not only are those questions likely sufficient to comply with the employer’s legal duty, but more importantly show the concern an employer should have for employees (but often feel paralyzed to express given all the “legal stuff”).
  2. If an employee is mentioning the employee’s own condition and mentions a condition (pancreatitis) or the need to go to the hospital or an emergency room, consider that sufficient to trigger the employer’s duty.
  3. If an employee is mentioning the condition of an employee’s family, the employer can expect additional information – that the employee needs some time off to help spouse/parent/child – before duty is triggered. Yet, again, even in those situations there is little harm in asking the employee the questions of concern noted above.