In Goldfarb v. Town of West Hartford, No. 3:03CV00862(DJS), 2007 U.S. Dist. LEXIS 7917 (D.Conn. Feb. 1, 2007), the employee worked as police dispatcher for West Hartford Police Department. All all relevant times she suffered from chronic fatigue syndrome and fibromyaliga. Goldfarb was absent from work on various occasions because of her condition. She frequently exhausted her allotment of sick leave each year. This situation went on for years. An analysis of her leave usage by Hartford revealed that many of her unscheduled absences were contiguous with her regularly scheduled days off. As a consequence, Hartford notified Goldfarb that it would require her to provide medical documentation to support her absences. Goldfarb notified Hartford that she had a chronic medical condition that caused her repeated patter of absence. She was subsequently advised that her absences related to her condition may be covered by the FMLA.
Goldfarb subsequently began to file for FMLA leave whenever she took time off from work due to her medical condition. She claims that after she began using the FMLA for her absences her supervisors engaged in harassing behavior toward her. Goldfarb alleged that this harassment included her being questioned about the nature of her illness and her symptoms. Goldfarb claimed that she was told that all she needed to do was identify the leave as "FMLA" and nothing more. She alleged that she was constantly questioned after she identified the absences as "FMLA" regarding the nature of her illness.
Goldfarb filed suit alleging violation of her constitutional due process rights as a result of harassment for using FMLA leave. The court disagreed. The court opined that it was "highly doubtful of Goldfarb's proposition that once she mentioned the FMLA as the basis for taking a sick day, all further questioning about he sick time must have ceased. The court does not read into the FMLA this almost magical-like power whereby, once the FMLA is invoked, Goldfarb is protected against all inquiries." The Court reasoned that the FMLA places the burden on employers to designate leave as FMLA-qualifying. Where, as in Goldfarb, the need for leave is unforeseen, the FMLA requires that employers obtain any additional required information to determine if the leave is FMLA-qualifying from the employee through informal means. Employees are expected to provide more information when it can readily be accomplished as a practical matter.
The Court continued:
It wold be unreasonable to require Defendants, after Goldfarb invoked the FMLA, to stop making any inquiries about Goldfarb's reasons for calling in sick. In all fairness, Defendants should have been permitted to determine, at the very least, whether Goldfarb was taking FMLA leave because of her chronic illness or for some other reasons. The court thus fails to see how such questioning, which not only falls far short of "brutal" conduct that "shocks the conscience," but which also, based upon relevant statutory and case law, could very well have been mandated by the FMLA, violated her right to substantive due process.
Comment: Although not formally an FMLA case, the decision is interesting in that it finds that the FMLA permits employers to ask an employee questions regarding the nature of their leave even though the employee has a known FMLA serious health condition and has specifically invoked the FMLA by name as the reason for the intermittent absence at issue. The decision basically finds that such questioning is permissible for the employer to fulfill its duty to designate leave as being covered by the FMLA.