Heads Up: Two Recent Cases Involving the FMLA

Notice of Need for FMLA Leave

The Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. ' 2601 et seq., requires large employers to provide, among other protections, 12 weeks of leave from employment during any 12-month period, for eligible employees. An employee's eligibility for FMLA leave depends on various factors, including length of service with the employer, hours worked in the year preceding the requested leave, and certification by a physician that the employee (or certain family members) suffers from a 'serious health condition.' Employers covered by the FMLA are prohibited, in ' 2615(a)(1), from interfering with, restraining, or denying an employee's exercise or attempt to exercise FMLA rights. An important element of a claim of FMLA interference is that the plaintiff gave her employer notice of her need for a medical leave and was, in fact, entitled to benefits under FMLA.

Even the best-intentioned employers can be uncertain about how to proceed where an FMLA-eligible employee does not actually request a leave, yet has disclosed in some fashion medical conditions that could possibly rise to the level of a 'serious health condition.' FMLA regulations make clear that a written request for leave is not required and that the employee need not actually mention the FMLA by name when making a request for leave. Employers nonetheless may not know, in the face of an ambiguous disclosure of a medical condition, whether to wait for an employee's express request for a leave of absence, or to ask the employee directly about the need for an FMLA leave of absence.

Third Circuit Ruling

The Third Circuit recently held that, after a prior surgery and medical leave, an employee's notice of an anticipated further medical leave is sufficient to invoke FMLA's protections.

The court held that an employee had given his employer sufficient notice of his request for FMLA leave by advising, approximately six months after heart surgery, that he required medical monitoring and might need additional surgery and time off. In Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398 (3d Cir. 2007), the plaintiff sued his former employer, alleging, among other claims, FMLA interference. The plaintiff had been hired by the defendant in 2001 and initially performed well in his position as service manager. In fall 2002, the plaintiff had heart bypass surgery and was on a medical leave of absence for about six weeks. The next spring, the plaintiff experienced further heart-related difficulties and was advised by his doctors that he would need to wear a heart monitor for 30 days and thereafter might require a second surgery and a six-week medical leave of absence. The plaintiff advised his immediate supervisor of these medical developments and, just over one week later, was terminated for poor performance.

The Third Circuit determined that the plaintiff could make out a viable claim of FMLA interference because he showed that he had given sufficient notice of his need for FMLA leave and, therefore, was entitled to FMLA benefits. The court thus rejected the defendant's position, which had been accepted by the District Court in granting summary judgment, that the plaintiff could not invoke the FMLA because he had not actually requested leave, but rather had merely indicated that he might need to take a medical leave. The defendant had pointed to undisputed evidence that the plaintiff had advised his supervisor only that it was possible that he would be out again because of his health condition and that the plaintiff had not found out until after his termination that he did actually need the second surgery.

In its holding, the Third Circuit relied on the FMLA regulations, which provide in relevant part: 'An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under the FMLA or even mention the FMLA.' 29 C.F.R. ' 825.302(c). The court interpreted the regulations to provide that an employee's notice of the need to take FMLA leave may be given before the employee knows exactly the dates or duration of requested leave. The court also relied on decisions in other circuit courts of appeals that liberally construed the FMLA's notice requirement. See, e.g., Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) ('employee must provide his employer with enough information to show that he may need FMLA leave'); Brenneman v. MedCentral Health Sys., 366 F.3d 412, 421 (6th Cir. 2004). Finally, the Sarnowski court observed that employees should be encouraged to notify their employers of an anticipated need for a medical leave of absence; as such notification assists employers in planning staffing requirements.

The key factor underlying the Sarnowski decision appears to be the employer's prior knowledge that the employee had a heart-related condition, which had recently necessitated an FMLA leave and to which the employee referred when he mentioned that he may need another surgery and another leave of absence. Indeed, although the Third Circuit's interpretation of the FMLA notice requirement is quite liberal, the employer did have information about the type of medical condition from which the employee suffered and that that condition had, just months earlier, required significant, FMLA-protected time off from work.

In one of the cases cited favorably by the Sarnowski court, by contrast, the employee had given his employer no information, despite the employer's repeated requests, about the nature of his medical condition and thus no information from which the employer could reasonably have inferred that the plaintiff had a 'serious health condition' that may be protected by FMLA. Woods, 409 F.3d at 993-94. Because the plaintiff in Sarnowski had informed his employer about his health condition, albeit verbally and informally, the court held that the FMLA protected him.

Seventh Circuit Ruling

The Seventh Circuit adopted an even more expansive interpretation of the FMLA's notice requirement in Stevenson v. Hyre Electric Co., 505 F.3d 720 (7th Cir. 2007), holding that an employee had given adequate notice of her need for FMLA leave by virtue of her highly erratic, unusual conduct and despite the lack of any prior indication that the employee had a 'serious health condition.' The Stevenson case involved an employee with a history of good performance who worked in an office in a warehouse and who, one day, was approached by a stray dog that had climbed in through the warehouse window. The employee immediately became very agitated and sprayed the office with a room deodorizer; she then began yelling and swearing that animals should not be in the workplace. The employee's high state of agitation lasted a few minutes, and, a few hours later, she told her employer that she was ill and needed to go home.

The employee stayed out of work until two days after the dog incident, when she met with the company president early in the morning, yelling and swearing about the dog having been at work. The employee stayed out of work for several more days, during which time she went to the emergency room, and eventually returned to work but left after a few hours (and after calling the police), saying that she was sick and leaving the emergency room report on a manager's desk. The employer then sent the employee a letter, stating that any further absence must be certified by a doctor for FMLA purposes, and thereafter changed the locks at the workplace so that the employee could not enter. Although the employee submitted two doctor's notes, neither of them specified the employee's illness. The employer ultimately terminated the employee's employment.

The Seventh Circuit concluded that, although the employee had not given her employer actual notice of her need for FMLA leave, she had provided constructive notice and thus had satisfied FMLA requirements. Specifically, the Seventh Circuit drew on its precedent that held that unusual behavior alone can be enough to notify an employer that the employee is experiencing a 'serious health condition.' See, e.g., Byrne v. Avon Products, 328 F.3d 379, 382-83 (7th Cir. 2003).

The Stevenson case takes a step beyond Byrne, however, because, even assuming that the employee's behavior was unusual enough to put the employer on notice that she had a 'serious health condition,' the employer did subsequently ask the employee for a doctor's FMLA certification and the employee failed to provide it. Instead, the employee provided two non-specific doctor's notes that did not indicate a 'serious health condition' and, only after receiving those deficient notes,did the employer terminate employment. Indeed, the FMLA regulations provide that where prior notice of the need for leave is not feasible, such notice must be given 'as soon as practicable' (29 C.F.R. ' 825.303(a)). The employee in Stevenson did not comply with her employer's request for FMLA certification even after it was practicable to do so, yet the court deemed her conduct at the time of the dog incident and a few days thereafter nonetheless sufficient to put her employer on notice of an FMLA-qualifying condition.

Conclusion

In light of these recent decisions about the sufficiency of FMLA notices, employers should be particularly cautious about concluding too readily that, in the absence of an express request for medical leave for identified significant health problems, an employee has not invoked the protection of the FMLA. Indeed, when an employee with a known history of a serious health condition has intimated the need for a future medical treatment or leave, or when an employee's unusual behavior presents a marked departure from past behavior, the employer should take care to explore the possibility that it has enough information to warrant application of the FMLA to that employee. Erring on the side of caution, and indulging the possibility that the FMLA covers the employee, will diminish the risk of FMLA claims like those recently decided by the Third and Seventh Circuits.

Victoria Woodin Chavey, a member of this newsletter's Board of Editors and co-chair of Day Pitney LLP's Labor and Employment Department, is a trial lawyer whose practice involves the defense of workplace and employment claims.

An employee approaches her supervisor to say that she needs time off at the end of the month, probably no more than three to four days. The supervisor asks for the specific dates and approves the time off. The employee then says, in passing, that she really is not looking forward to her knee surgery, but knows she must have it. The supervisor, who is aware that the employee had had knee surgery about four years earlier, is reluctant to inquire about the surgery or any related medical information, and so changes the subject to the weather.

Has the employer in this scenario appropriately stayed clear of a discussion with the employee about a medical condition? Most would say yes. Either because the Americans with Disabilities Act defines 'disabled' as including 'perceived as disabled,' or because of HIPAA's protection of the privacy of personal health information, or because of a general preference not to become involved in a co-worker's or subordinate's personal life, most employers intentionally refrain from delving into employees' personal medical histories or making assumptions about employees' health status. Rather, employers generally prefer to focus exclusively on their employees' work conduct. A manager need not know why an employee is out of work, but only that he or she is out of work for medical reasons deemed legitimate by a health care provider.

Two recently decided cases, however, may be viewed as challenging this approach to employees with disclosed or apparent medical conditions. Both cases dispute the conventional wisdom that employers should not make assumptions about medical conditions or ask employees about medical conditions until an employee has affirmatively notified the employer about the definite need for a leave of absence. This article reviews these two cases and identifies steps that employers can take to ensure that they are meeting all their statutory obligations to employees.

Notice of Need for FMLA Leave

The Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. ' 2601 et seq., requires large employers to provide, among other protections, 12 weeks of leave from employment during any 12-month period, for eligible employees. An employee's eligibility for FMLA leave depends on various factors, including length of service with the employer, hours worked in the year preceding the requested leave, and certification by a physician that the employee (or certain family members) suffers from a 'serious health condition.' Employers covered by the FMLA are prohibited, in ' 2615(a)(1), from interfering with, restraining, or denying an employee's exercise or attempt to exercise FMLA rights. An important element of a claim of FMLA interference is that the plaintiff gave her employer notice of her need for a medical leave and was, in fact, entitled to benefits under FMLA.

Even the best-intentioned employers can be uncertain about how to proceed where an FMLA-eligible employee does not actually request a leave, yet has disclosed in some fashion medical conditions that could possibly rise to the level of a 'serious health condition.' FMLA regulations make clear that a written request for leave is not required and that the employee need not actually mention the FMLA by name when making a request for leave. Employers nonetheless may not know, in the face of an ambiguous disclosure of a medical condition, whether to wait for an employee's express request for a leave of absence, or to ask the employee directly about the need for an FMLA leave of absence.

Third Circuit Ruling

The Third Circuit recently held that, after a prior surgery and medical leave, an employee's notice of an anticipated further medical leave is sufficient to invoke FMLA's protections.

The court held that an employee had given his employer sufficient notice of his request for FMLA leave by advising, approximately six months after heart surgery, that he required medical monitoring and might need additional surgery and time off. In Sarnowski v. Air Brooke Limousine, Inc. , 510 F.3d 398 (3d Cir. 2007), the plaintiff sued his former employer, alleging, among other claims, FMLA interference. The plaintiff had been hired by the defendant in 2001 and initially performed well in his position as service manager. In fall 2002, the plaintiff had heart bypass surgery and was on a medical leave of absence for about six weeks. The next spring, the plaintiff experienced further heart-related difficulties and was advised by his doctors that he would need to wear a heart monitor for 30 days and thereafter might require a second surgery and a six-week medical leave of absence. The plaintiff advised his immediate supervisor of these medical developments and, just over one week later, was terminated for poor performance.

The Third Circuit determined that the plaintiff could make out a viable claim of FMLA interference because he showed that he had given sufficient notice of his need for FMLA leave and, therefore, was entitled to FMLA benefits. The court thus rejected the defendant's position, which had been accepted by the District Court in granting summary judgment, that the plaintiff could not invoke the FMLA because he had not actually requested leave, but rather had merely indicated that he might need to take a medical leave. The defendant had pointed to undisputed evidence that the plaintiff had advised his supervisor only that it was possible that he would be out again because of his health condition and that the plaintiff had not found out until after his termination that he did actually need the second surgery.

In its holding, the Third Circuit relied on the FMLA regulations, which provide in relevant part: 'An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under the FMLA or even mention the FMLA.' 29 C.F.R. ' 825.302(c). The court interpreted the regulations to provide that an employee's notice of the need to take FMLA leave may be given before the employee knows exactly the dates or duration of requested leave. The court also relied on decisions in other circuit courts of appeals that liberally construed the FMLA's notice requirement. See, e.g., Woods v. DaimlerChrysler Corp. , 409 F.3d 984, 990 (8th Cir. 2005) ('employee must provide his employer with enough information to show that he may need FMLA leave'); Brenneman v. MedCentral Health Sys. , 366 F.3d 412, 421 (6th Cir. 2004). Finally, the Sarnowski court observed that employees should be encouraged to notify their employers of an anticipated need for a medical leave of absence; as such notification assists employers in planning staffing requirements.

The key factor underlying the Sarnowski decision appears to be the employer's prior knowledge that the employee had a heart-related condition, which had recently necessitated an FMLA leave and to which the employee referred when he mentioned that he may need another surgery and another leave of absence. Indeed, although the Third Circuit's interpretation of the FMLA notice requirement is quite liberal, the employer did have information about the type of medical condition from which the employee suffered and that that condition had, just months earlier, required significant, FMLA-protected time off from work.

In one of the cases cited favorably by the Sarnowski court, by contrast, the employee had given his employer no information, despite the employer's repeated requests, about the nature of his medical condition and thus no information from which the employer could reasonably have inferred that the plaintiff had a 'serious health condition' that may be protected by FMLA. Woods, 409 F.3d at 993-94. Because the plaintiff in Sarnowski had informed his employer about his health condition, albeit verbally and informally, the court held that the FMLA protected him.

Seventh Circuit Ruling

The Seventh Circuit adopted an even more expansive interpretation of the FMLA's notice requirement in Stevenson v. Hyre Electric Co. , 505 F.3d 720 (7th Cir. 2007), holding that an employee had given adequate notice of her need for FMLA leave by virtue of her highly erratic, unusual conduct and despite the lack of any prior indication that the employee had a 'serious health condition.' The Stevenson case involved an employee with a history of good performance who worked in an office in a warehouse and who, one day, was approached by a stray dog that had climbed in through the warehouse window. The employee immediately became very agitated and sprayed the office with a room deodorizer; she then began yelling and swearing that animals should not be in the workplace. The employee's high state of agitation lasted a few minutes, and, a few hours later, she told her employer that she was ill and needed to go home.

The employee stayed out of work until two days after the dog incident, when she met with the company president early in the morning, yelling and swearing about the dog having been at work. The employee stayed out of work for several more days, during which time she went to the emergency room, and eventually returned to work but left after a few hours (and after calling the police), saying that she was sick and leaving the emergency room report on a manager's desk. The employer then sent the employee a letter, stating that any further absence must be certified by a doctor for FMLA purposes, and thereafter changed the locks at the workplace so that the employee could not enter. Although the employee submitted two doctor's notes, neither of them specified the employee's illness. The employer ultimately terminated the employee's employment.

The Seventh Circuit concluded that, although the employee had not given her employer actual notice of her need for FMLA leave, she had provided constructive notice and thus had satisfied FMLA requirements. Specifically, the Seventh Circuit drew on its precedent that held that unusual behavior alone can be enough to notify an employer that the employee is experiencing a 'serious health condition.' See, e.g., Byrne v. Avon Products , 328 F.3d 379, 382-83 (7th Cir. 2003).

The Stevenson case takes a step beyond Byrne, however, because, even assuming that the employee's behavior was unusual enough to put the employer on notice that she had a 'serious health condition,' the employer did subsequently ask the employee for a doctor's FMLA certification and the employee failed to provide it. Instead, the employee provided two non-specific doctor's notes that did not indicate a 'serious health condition' and, only after receiving those deficient notes,did the employer terminate employment. Indeed, the FMLA regulations provide that where prior notice of the need for leave is not feasible, such notice must be given 'as soon as practicable' (29 C.F.R. ' 825.303(a)). The employee in Stevenson did not comply with her employer's request for FMLA certification even after it was practicable to do so, yet the court deemed her conduct at the time of the dog incident and a few days thereafter nonetheless sufficient to put her employer on notice of an FMLA-qualifying condition.

Conclusion

In light of these recent decisions about the sufficiency of FMLA notices, employers should be particularly cautious about concluding too readily that, in the absence of an express request for medical leave for identified significant health problems, an employee has not invoked the protection of the FMLA. Indeed, when an employee with a known history of a serious health condition has intimated the need for a future medical treatment or leave, or when an employee's unusual behavior presents a marked departure from past behavior, the employer should take care to explore the possibility that it has enough information to warrant application of the FMLA to that employee. Erring on the side of caution, and indulging the possibility that the FMLA covers the employee, will diminish the risk of FMLA claims like those recently decided by the Third and Seventh Circuits.

Victoria Woodin Chavey, a member of this newsletter's Board of Editors and co-chair of Day Pitney LLP's Labor and Employment Department, is a trial lawyer whose practice involves the defense of workplace and employment claims.