Human Resources: Employees Are Vulnerable To Discharge If They Fail To Give Adequate Notice of Need for FMLA Leave

How much and what kind of notice of a need for Family and Medical Leave Act (FMLA) leave should an employee be required to give to his or her employer? Three recent court decisions have held that an employee´s discharge was justified because all the workers had failed to give their employers sufficient information for the employers to know whether the leave requested was FMLA-qualifying.

Under the FMLA, eligible employees may take up to 12 weeks of unpaid leave per year for qualifying conditions, which include the employee´s own serious health condition; the serious health condition of a parent, child or spouse; or pregnancy, maternity and parenting. The U.S. Department of Labor (DOL) crafted implementing regulations for the FMLA that spell out the notice requirements for employees.

Under the DOL regulations, the employer bears responsibility for posting required notices about the FMLA, and for designating requested leave as FMLA-qualified. However, the employee must give the employer enough information to enable it to label the time off as FMLA leave (29 C.F.R. Â§825.300 and 29 C.F.R. Â§825.208).

The DOL regulations stipulate that employees are expected to give their employers at least 30 days´ notice for "foreseeable" leave, such as in the case of childbirth, adoption or planned surgery (29 C.F.R. Â§825.302(a)). If the need for leave is not foreseeable, the employee is required to give both adequate and timely leave as soon as practicable (29 C.F.R. Â§825.302(b)).

If the employer ordinarily requires written notice of the need for leave, the employee must give it, if possible. But in any case, the employee must provide at least enough verbal notice to apprise the employer of his or her need for leave, and of when and for how long he or she may be away from the job (29 C.F.R. Â§825.302(c) and (d)). In all cases, if possible, the employee is expected to consult with the employer, and to try to schedule leave so as not to interfere unreasonably with the employer´s business operations (29 C.F.R. Â§825.302(e)).

The issue of employee notice relating to FMLA leave was recently considered by three federal district courts, all three of which ruled that the employee in question had refused or failed to give the employer timely, relevant and crucial information the employer needed in order to be able to decide whether the leave qualified under the FMLA.

In these decisions:
- A worker was lawfully fired after refusing to answer legitimate questions about his unexplained request for "family leave," according to the district court for Eastern Pennsylvania (McCarron v. British Telecom, (d/b/a Yellow Book USA);

- The U.S. District Court for Maryland ruled that an employee who failed to provide adequate and timely notice to his employer of his need for sick leave, or of the likely duration of the leave, "did not trigger [the employer´s] obligations and duties under the FMLA, and the termination of his employment was not violative of the" act (Peeples v. Coastal Office Products Inc.); and

- A police officer who was taking a post-surgery narcotic analgesic had a duty to inform her employer that she needed leave, "as soon as practicable," a federal court for Northern Illinois concluded, because she could not report for duty while taking the drugs. The employer in this case was not liable for failing to give the officer FMLA leave (Kramarski v. Village of Orland Park, N.D. Ill.).

McCarron v. British Telecom
The employee in McCarron v. British Telecom, Joseph P. McCarron, was first hospitalized for a "bipolar episode" in 1998, according to the court. While he was out on medical leave, his father maintained contact with the employer´s human resources manager, Anne Snyder-Rebstock, and gave her the necessary information and documentation for McCarron´s leave to qualify under the FMLA.

(Bipolar disorder, also called manic-depression, involves extreme and unpredictable mood swings from elation or irritability (mania) to sadness and hopelessness [depression], with periods of normal mood in between.)

McCarron returned to work in June 1998, and told his supervisor that he had been hospitalized for an adverse reaction to diet pills and what he called his "maintenance medication." After he had been back for several months, McCarron testified, various Yellow Book managers began teasing and counseling him about losing weight; called him a "Nutty Professor"; and mentioned his "sickness" in front of other employees.

On July 14, 1999, the worker left Snyder-Rebstock a voice mail message requesting leave for a "family situation." When she called to ask for documentation several times - and warned McCarron that under company policy, three days of unapproved absence could lead to discharge - the employee refused to provide any more information, and asked Snyder-Rebstock to "leave him alone" until he had dealt with his situation.

On July 19, McCarron was again hospitalized for a bipolar episode. A week later, he was fired because of his accumulated unapproved absences. McCarron filed suit alleging that he had been denied FMLA leave and discharged unlawfully in violation of the FMLA and other laws.

Reviewing the matter, the court explained that while an employee giving notice of a need for FMLA leave does not have to assert rights under - or even mention - the act, he or she "at a minimum, must provide sufficient information to notify the employer that he needs FMLA leave," citing 29 C.F.R. Â§825.302(c). Although "sufficient notice" is not defined precisely in either the law or the DOL regulations, the employer must be given enough information through either formal or informal channels for it to be able to fulfill its responsibility to determine whether the requested leave qualifies under the act. Then the employer must designate the leave as FMLA leave and give the employee information about the law and his or her obligations under it.

Here, the court ruled, it is "undisputed" that McCarron, "did not state the real reason for requesting family leave." Further, although Snyder-Rebstock tried several times to contact McCarron to ascertain the reason for his absence so she could determine whether the leave qualified under the FMLA, McCarron refused to give her any details.

McCarron noted that after he was released from the hospital Aug. 2, he had contacted several supervisors to explain his absence. But the court noted that the worker continued to conceal the reason for his leave, telling managers he had "memory problems," or that he needed leave "for personal reasons" or to care for a "parent".

McCarron further suggested that his "erratic, irrational" behavior before he left work in 1999 should have given Yellow Book notice that he, "was suffering from some sort of medical and/or physical condition(s) that were serious enough to warrant hospitalization." Further, because the situation prior to his 1999 leave was similar to that preceding his approved medical leave in 1998, Yellow Book "should have known that his leave was FMLA-qualifying," McCarron contended.

But the court found that none of these assertions gave evidence that would lead a reasonable jury to conclude that the employer should have known of McCarron´s bipolar condition. Nor was McCarron´s condition such that he could not have communicated his reason for needing leave, the court held, ruling that "no rational trier of fact could conclude that the information [McCarron] provided to Yellow Book on July 14 was enough for Yellow Book to determine that the requested leave qualified under the FMLA." Thus McCarron´s discharge did not violate the FMLA, the court concluded, granting summary judgment to the employer.

Peeples v. Coastal Office Products Inc.
In the second case - this one decided by the U.S. District Court for Maryland - Gary Peeples, another employee suffering from depression, refused to give his employer, Coastal Office Products, sufficient information for it to decide whether his time away from work was FMLA-qualifying.

Peeples had been working for Coastal for about five years - most recently in a high-stress position as hardware services manager - when, on Friday March 10, 2000, he left work after lunch with chest pains, feeling light-headed, anxious and depressed. On the way home, he later testified, Peeples thought about running his car off the road "as a means of getting time off of work." When he got home, Peeples began to cry and shake uncontrollably. His doctor told him to go to the emergency room, where a psychiatrist prescribed two anti-depressant medications and told the worker to stay home for a week. Peeples was discharged with a diagnosis of "depressive disorder-not otherwise specified" (DO-NOS) and was not hospitalized.

On Monday the 13th, Peeples called his supervisor and said he was "hoping to return to work" but could make no guarantees. He added that he would not have specific information about how long he would be out and when he could return until after he had met with his doctor on the 17th.

Over the course of the following weeks, Coastal officials contacted Peeples several times, but each time Peeples said he did not know when he would return, saying he needed another medical evaluation before he could know when he could get back to work. Peeples gave Coastal doctor´s notes explaining that he needed leave, but none contained a diagnosis. Significantly, the court found, Peeples did not fax Coastal the hospital discharge order with the "DO-NOS" diagnosis.

After he had been off work for about two weeks - having provided "virtually no information" to the employer, the court noted - Coastal began considering replacing Peeples. At that point, Peeples gave permission for Coastal´s chief operation officer (COO) to speak to his primary care doctor, who told the COO that the worker had "agitation, insomnia, anxiety and some [symptoms] of depression." The doctor said there were no physical restrictions on Peeples´ ability to work - except that he could not work at Coastal - and asked the company not to contact Peeples until after his next appointment on April 12.

The company fired Peeples April 5, but when Peeples filed an FMLA complaint with the court, Coastal offered to settle the matter by reinstating Peeples on June 5, 12 weeks after his first day of absence, if the employee would provide medical information. "Peeples did not respond to this offer," the court noted. The court commented in a footnote that "[d]isabled employees, especially those with psychiatric disabilities, may have good reasons for not wanting to reveal unnecessarily every detail of their medical records because much of the information may be irrelevant to identifying and justifying accommodations, could be embarrassing, and might actually exacerbate workplace prejudice . . . Nevertheless, it is equally true that ´an employer cannot be faulted [where] . . . the employee fails to supply information that the employer needs,´" the court continued, citing Taylor v. Phoenixville Sch. Dist.

In the Peeples case, "all that was being sought was basic diagnosis and prognosis information" - a medical name for the condition that rendered Peeples unable to work at Coastal, and an estimate of when he would be able to return to work - that the employer "was entitled to have," the court concluded. "Peeples´ unjustified failure to provide such information in the circumstances here fatally undermines his FMLA claim." The court granted the employer summary judgment.

Kramarski v. Village of Orland Park
In the third dispute, another employee did not fulfill her duty to give her employer enough information for it to make a determination of whether her leave qualified under the FMLA, according to the federal district court for Northern Illinois.

The employee, Roberta Kramarski, was in training for her job as a police officer for the Village of Orland Park when she was injured in a baton training exercise. Thereafter, Kramarski allegedly suffered from chronic back pain, difficulty breathing and other health problems.

In January 1999, Kramarski had outpatient nasal surgery to correct problems she said had stemmed from the baton training incident. When unexpected complications arose on the operating table, the doctor placed the police officer on a prescription narcotic analgesic.

Under department regulations, Kramarski was not permitted to report to duty while on such medications. After her surgery, she called in and told a non-supervisory employee that she would not be at work that day, "due to her surgery." Kramarski did not mention the medication.

After Kramarski had called in sick for several days, her commander called her at home to secure more information about why she was not coming to work, and to learn when she would be back, but the officer did not disclose any more information to the commander. (The court noted that a pending worker´s compensation claim Kramarski had filed, "seems to have made her reticent to discuss her health issues in detail with the department," which in turn seemed to have "frustrated and angered a department that wanted its officer to return to work.")

On Jan. 20, 1999, Kramarski was formally questioned about her absence from work. When she refused to answer some questions or to provide requested documents, she was discharged. She sued for a variety of reasons, including denial of FMLA leave.

Reviewing the case here, the court found that Kramarski´s inability to work while she was on prescription narcotics does qualify as a serious health condition. "However," the court added, "an employer´s duty to grant FMLA leave is not triggered if the employee fails to give the employer proper notice of her need for such leave," citing Collins v. NTN-Bower Corp.

Although in this case Kramarski could not have given 30 days´ advance notice because the complications in surgery were unexpected, once her medication had been prescribed, the court said, "it became Kramarski´s duty to inform her employer of the need for leave, the reason, and the timing and expected duration of the leave ´as soon as practicable´" (29 C.F.R. Â§825.302(b)). In short, "Kramarski failed, for FMLA purposes, to provide her employer with timely and adequate notice of the need for FMLA leave and the village cannot be held liable for failure to grant Kramarski FMLA leave in this instance," the court ruled, granting the employer summary judgment.