The FMLA Blog

Third Circuit Finds Adequate Notice of Need for FMLA Leave Does Not Require Exact Dates and Duration of Leave

To perfect the right to FMLA leave an eligible employee must provide his or her employer with reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA.  In providing notice, the employee need not use any magic words.  The employee does not have to expressly assert rights under the FMLA or even mention the FMLA.  The critical question is how the information conveyed to the employer is reasonably interpreted. 

An employee who needs medical treatment may inform his or her employer of the need for leave before scheduling treatment in order to reasonably accommodate the needs of the employer.  An employee who does not cite to the FMLA or provide the exact dates or duration of the leave nonetheless may provide his or her employer with sufficient information to reasonably apprise the employer that the employee's request may be covered by the FMLA.

In Sarnowski v. Air Brooke Limousine, Inc., No. 06-2144, 2007 U.S. App. LEXIS 28668 (3d Cir. Dec. 12, 2007), the Third Circuit vacated and remanded the award of summary judgment to the employer dismissing the Sarnowski's FMLA interference claim.  In that case, Sarnowski was terminated eight days after informing his supervisor that his doctor had advised him of the need to monitor his heart and the possible need for additional surgery and 6 weeks of leave.  At the time, Sarnowski had only recently returned to work after missing 6 weeks of work due to quintuple coronary artery bypass surgery.  The court found that the Air Brooke had sufficient notice of Sarnowski's intent to take leave to bar Air Brook from interfering with his FMLA rights.

Comment:  FMLA protection can be invoked by employee notice that they may need FMLA leave at some unknown time in the future and for an unknown duration.  The decision certainly can be interpreted in a way that invites employee abuse. 

For example, an employee who may need intermittent leave at some unknown point in the future notifies the employer of a serious health condition in accord with Sarnowski.  Three years later the employee is absent without warning. The employee claims that adequate notice of the need for leave was provided three years earlier. 

Employers might argue that notice three years earlier was insufficient. Remember, Sarnowski required that the notice provide the employer with "reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA."  The facts of Sarnowski suggest that a determination of the need for surgery and additional leave pending the results of further monitoring was reasonably imminent, not open-ended.  Of course, one could argue the opposite; that court in Sarnowski did not place any time limit on when leave must be taken after notice is provided.

Allowing employees to request leave even though they don't know if or when it may start also burdens the employee.  The FMLA places temporal limitations when an employee must request leave based on whether the need for leave is foreseeable or not.  Employer's could argue that Sarnowski requires employee's to notify the employer of the need for leave even though the employees does not yet know the schedule or amount of leave needed.  If the employee waits until they know their leave schedule their request for leave may be untimely.  If the request is untimely, an employer may have the right to delay or deny FMLA leave.

Leave Due to "Depression" Insufficient Notice for FMLA Protections

An employee's request for leave due to "depression" failed to adequately notify the employer that the absence may be FMLA-qualifying.

The issue was addressed in Rask v. Fresenius Medical Care North American, No. 06-3923, 2007 U.S. App. LEXIS 28198 (8th Cir. Dec. 6, 2007).  Elizabeth Rask was terminated from her job as a patient care technician for Fresenius when she failed to come to work on May 28.  Prior to that, she had received a series of disciplinary actions for attendance problems.  Rask sued, alleging that her termination violated the FMLA.  She claimed that she should not have received discipline for some of her depression-related absences as they should have been covered by the FMLA.  The district court awarded summary judgment to Fresenius.  Rask appealed.

On appeal, Rask argued that her supervisor's had prior notice that she suffered from depression and the side effects of medications for same which required periodic absences.  With prior notice, her last request for leave "for help with my medication still, I'm still having a lot of side effects from what they put me on," was sufficient notice of her need for FMLA leave.  The court disagreed.

The court opined that, while mental illness can be an FMLA-covered "serious health condition" if it satisfies the statutory and regulatory definitions, the FMLA does not "include depression in all of its forms."  The court continued:

Depression, like many illnesses, is a condition with many variations, and in common parlance the word is used to describe a wide variety of symptoms, including simply "a state of feeling sad."   

Because of the broad scope encompassed by the term "depression," the court went on to find that "Ms. Rask would need to apprise Fresenius of more than the mere fact that she had been diagnosed with something called"depression" to put them on notice that she had a serious health condition."

The court went on to distinguish the facts from the situation in Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th Cir. 2002).  In that case, the Eighth Circuit found that a genuine issue of material fact existed as to whether a bank employee with depression put the bank on notice that she needed FMLA leave by telling them she would be absent for "depression again."  The court noted that in Spangler the employee's supervisors knew that the employee had been diagnosed with depression and had taken two formal leaves of absence for treatment of her depression. 

Here, in contrast, the court found that "Fresenius...did not have the contextual knowledge that the employer in Spangler had that would link the statement with a serious health condition.  Rask pointed to the fact that she had requested leave on an earlier occasion from a supervisor who knew she was depressed because of side effects from medication.  The court observed:

We conclude that there is no evidence in the record that Ms. Rask at any point gave her supervisors any details about her depression, its severity, or any incapacity that it might give rise to, sufficient to indicate that it, as opposed to the side effects from her medication, was serious. The side effects in this case are not covered by the FMLA because there was no evidence that they were a "chronic health condition." 

The court went on to note that, at best, Rask's supervisor was aware that she was depressed "with all the ambiguity that the word entails.  When Ms. Rask said that she would be absent for "help" with my medication," Fresenius lacked any context to indicate that the side effects of Ms. Rask's medications were not the cause of the absence.  It also lacked any context to link this absence with a serious health condition."

Comment: To perfect the right to FMLA leave, an employee must apprise his or her employer of the specifics of his or her health condition in a way that makes it reasonably plain that it is serious.  It is not a difficult burden.  Rask teaches that medical "buzz" words like "depression" cover such a broad spectrum of potential illnesses, from having a bout of the "blues" to incapacity requiring institutionalization, that merely invoking "depression," without more information, fails to adequately apprise the employer that the leave may be FMLA-qualifying.  Note that the reference to "depression" was not even sufficient to shift the burden  of inquiry to the employer.

To perfect the right to FMLA leave, employee's will want to provide more detailed information regarding the nature of their illness, its severity, and whether the illness has caused incapacity. 

The Eighth Circuit covers North and South Dakota, Minnesota, Nebraska, Iowa, Missouri, and Arkansas.

Need for Leave because Mother was Sick in Hospital Held Sufficient Notice of Need for FMLA Leave

In Belerim v. Nelco, Inc., No. 3:05-CV-803-H, 2007 U.S. Dist. LEXIS 40447 (W.D.Ky. June 4, 2007), the Court found that an employee's request for one-month's leave to go to Kosovo because "My mom, she is sick in the hospital" was sufficient notice that the leave might be FMLA qualifying to defeat the employer's motion for summary judgment.

Comment:  The FMLA does not require an employee to ask for leave by name. Rather, the FMLA merely requires that an employee provide sufficient information when requesting leave to put the employer on notice that the leave might be FMLA-qualifying.  Court's have generally found that an employee's request for leave because they or a covered family member is "sick" was insufficient notice that the leave might be FMLA-qualifying.  Here, the combination of "sick" and "hospitalization" was found to be sufficient notice, at least to survive a summary judgment motion (in which all inferences are decided in favor of the non-moving party, in this case the employee). 

Employers need to train those responsible for approving FMLA leave to listen very carefully to what the employee says to justify the need for leave.  As demonstrated by the case, the sufficient notice standard is very modest. 

Notice of Need for FMLA Leave by Employee's Mother and Sister Inadequate Where Emploiyee Was Capable of Requesting Leave Himself

In Brown v. The Pension Boards, United Church of Christ, No. 04 Civ. 10062 (RWS), 2007 U.S. Dist. LEXIS 37248 (S.D.N.Y.), the Court dismissed the employee's FMLA claim after finding that the employee's request for leave failed to adequately notify the employer that the absence might be covered by the FMLA.  There, Brown, feeling stressed due to the pressures of work, called off work two days in a row.  Under the employer's policy, an employee who fails to report to work two days in a row is considered to have abandoned their position. 

On the second day, the employer received a facsimile copy of a doctor's mote indicating that Brown was under physician's care for "an exacerbation of chronic illness" which rendered him unable to work.  The note indicated that Brown would be able to return to work in a week.  The note did not specify the nature of the illness.

The employer attempted, unsuccessfully, to contact Brown during his absence, leaving messages.  The employer eventually got in contact with Brown's mother and sister.  The mother told the employer that she had been in daily contact with her son.  She eventually told the employer that Brown was in Costa Rica, he was "running from himself," and that he had "had a breakdown condition."  A sister contacted by the employer indicated that Brown was "sick."  The employer was not given contact information for Brown in Costa Rica.   

Brown's employment was subsequently terminated. The day after the termination decision, Brown called his employer from Costa Rica.  He told his employer that he had had a nervous breakdown and went to Costa Rica to get help from his family. Brown eventually suppled a doctor's note excusing him from work for his entire absence as a result of treatment for a nervous condition.  The employer did not rescind Brown's termination.  Brown sued alleging that his termination interfered with his FMLA rights. 

In awarding summary judgment to the employer, the Court found that Brown had failed to put his employer on adequate notice that the leave might be FMLA-qualifying.  In pertinent part, the Court found that a spokesperson may give notice of the need for FMLA leave on an employee's behalf "only if the employee is unable to do so personally."  29 CFR 825.303(b).  Here, "despite being in daily phone contact with his mother, Brown did not contact the Board until ..." after his termination.  "There is nothing in the record to suggest that Brown was unable to contact Boards himself; indeed, the record indicates that Brown was in fact able tot do so. Thus, the statements of Brown's mother and sister do not constitute adequate notice under the FMLA."

Comment: The decision highlights an often ignored provision of the FMLA regulations.  While the FMLA allows a spokesperson to notify the employer that an employee needs FMLA leave, this may only happen where the employee is unable to notify the employer him or herself.  If the employee is capable of notifying the employer and does not, notice by the spokesperson is not permitted and, therefore, will be inadequate no matter what the quality of the notice. 

To fall within the spokesperson exception, Brown should have argued that his psychiatric condition rendered him unable to contact his employer. The fact that he could talk to his mother, an individual who was not the source of his current anxiety, is not evidence that he had the psychiatric wherewithal to contact his employer.

Second, the Court failed, in my estimation, to take into account the employer's policy of accepting notice of the need for leave from a spokesperson. Always remember, the FMLA permits an employer to have a more generous leave policy or practice than the minimum required by the FMLA.  Here, the employer reached out to the mother and sister to find out the status of the absent employee.  If it could be established that the employer would accept notice of an employee's absence from a spokesperson regardless of the availability of the employee, it could be argued this is a more generous policy than the FMLA, which the employer is bound to follow.

Employers should review their emergency contact information policy in light of the FMLA spokesperson exception.  If an employer grants leave to an employee based on information obtained from an emergency contact, the employer arguably has lost the right to assert the FMLA spokesperson defense where, as in Brown, the employee is able to contact the employer but elects not to.  For the same reason, unions and employees should look to the employers more generous policy or practice of accepting notice of the need for leave from a spouse or other spokesperson to defeat the FMLA spokesperson requirement.

Bereavement Leave is Not Available Under the FMLA

A death in the family is not automatic grounds for FMLA coverage.  An employee must notify his or her employer that they need leave for an FMLA-covered condition.  An employee's request for bereavement leave to make funeral arrangements and wrap up the affairs of his deceased brother failed to put the employer on notice that the employee was requesting FMLA leave.  To be covered by the FMLA, the employee needed to tie his request for bereavement leave to address his own serious health condition (e.g., depression), or the needs of a spouse, parent, son, or daughter. 

In Hoban v. WBNCC Joint Venture, No. 06-13142, 2007 U.S. Dist. LEXIS 25407 (E.D.Mich. April 5, 2007), the employee called in and asked for leave to take "care of personal needs with my brother's body.  We're having a hard time getting his body.  I've got to come up with $ 1600 to pay off some debts with him.  If there is a question or problem, please give me a call."  The Court found that the notice failed to reasonably apprise the employer that the leave might be covered by the FMLA due to a "serious health condition." 

In so holding, the Court distinguished the case from the situation in Stubl v. T.A. Sysm., Inc., 984 F. Supp. 1075 (E.D.Mich. 1997).  In Stubl, the court found that the employee provided sufficient information to alert the employer that the leave might be FMLA-qualifying.  There, the the employee stated that "I am taking this leave of absence based on my personal loss caused by the death of Keith Jr. with regards to my personal health."  The Court reasoned that the notice in Stubl was sufficient because the employee tied his need for leave to his own physical or mental condition as a result of the death of a family m member. 

Comment:  Bereavement for the death of a family member is not automatically covered by the FMLA.  To invoke the protections of the FMLA, an eligible employee must provide his or her employer with adequate notice that leave is needed for a reason covered by the FMLA.  To do so, an employee need not invoke the FMLA by name.  However, the employee must provide sufficient information to alert the employer that the need for leave might be covered by the FMLA.  Where bereavement leave is involved, an employee, for example, may need FMLA leave because they are depressed and that depression meets the definition of an FMLA-covered s"serious health condition."  Similarly, the employee may need leave "to care for" a spouse, son, daughter, or parent who is suffering, physically or mentally, as a result of the death of a loved one.  Wrapping up the affairs of the deceased is not an FMLA-covered "serious health condition" for purposes of job-protected leave.

Court Entertains Employee's Claim that Employer Violated FMLA Leave By Denying Her Requst for FMLA Leave to Avoid Taking A Drug Test She Knew She Would Fail

In Sons v. Henry County, No. 1:05-cv-0516-DFH-TAB, 2006 U.S. Dist. LEXIS 79604 (S.D.Ind. Oct. 31, 2006). the court refused to dismiss an employee's claim that her FMLA rights were violated when the employer denied her request for FMLA leave to avoid taking a mandatory drug test that she knew she would fail. 

Sons worked as a 911 operator for Henry County's Sheriff's Department.  Established County policy provided that employees would be randomly selected for drug testing.  Employees were subject to termination or other discipline for violating criminal drug statutes, failing to appear for drug testing, or attempting to provide a false test sample.  Sons had passed three or four prior drug tests. 

On December 18 she was notified that she had to submit a urine sample as part of a drug test.  She met with her supervisor and admitted to using Addreall and Prozac.  She failed to mention that her use of Didrex.  She did not have a prescription Addreall.  Her prescription for Didrex had expired several years before.  She asked her supervisors if there was any way she could file for FMLA leave instead of taking FMLA leave "to try and get myself taken care of."  Her request was denied.  She took the test but could not produce a sufficient urine sample for analysis.  The next work day she took another drug test, which came up positive for methamphetamine. 

Sons met with her supervisor and the County Sheriff about her positive test.  She admitted she did not a prescription for Addreall.  She did not provide a prescription to her supervisors for the Didrex, but sent one to the Lab that conducted the drug screen.  Sons altered the date on the prescription she sent to the Lab from 1999 to 2003 in an attempt to make the prescription look more recent.  After initially denying it, she admitted to the Sheriff and her supervisor that she altered the prescription.  She again asked for FMLA leave, this time stating that it was on the advice of her doctor at the drug rehabilitation center.  Sons subsequently resigned before the results of a pending investigation of the situation was completed.  She sued Henry County alleging that it violated the FMLA by twice denying her request for FMLA leave, and by constructively discharging her.

The court initially found that Sons timely notified her employer of the need for FMLA leave.  The court found that Sons timely provided her employer with notice of the need for FMLA leave "as soon as practicable" under the circumstances.  The court observed:

A jury could reasonably conclude that the gravity of Sons' substance abuse problem was not apparent to her until she actually faced the prospect of a drug test.  That is, the impending drug test could have been the event that forced Sons to confront her drug problem head on.  At that time, Sons allegedly first asked for FMLA leave so that she could presumably confront her problem immediately.

The Court rejected the employer's alternative argument that Sons' oral notice was insufficient because it  failed to alert the employer that she had a qualifying reason for taking leave.  The court initially observed that employees must generally give "some indication that the employee actually has a qualifying reason for taking leave, like a serious health condition...  However, an employer's actual or constructive knowledge of an employee's condition can satisfy the employee's obligation to mention explicitly a serious medical condition in her initial notice."

Here, the court found sufficient material facts in dispute whether Sons' supervisors were actually or constructively aware of her substance abuse problem to preclude dismissal of the case.  In support, the court cited the employee's admission to her supervisor that she consumed Adderall, a class II controlled substance that was not prescribed to her.  The court also noted that at the time she was denied leave for a second time the Sheriff knew that she had failed a drug test. 

Comment:  I find the decision interesting because the court appears to seriously entertain the employee's attempt to invoke the FMLA as a means to deliberately avoid having to take a mandatory drug test.  Appearances, however, may be deceiving.  The court ultimately awarded summary judgment to the employer because Sons was unable to demonstrate that she suffered any monetary harm as a result of the denial of FMLA leave.  The court noted that Sons remained employed and received pay until she resigned.  Generally, absent actually damages, an employer's violation of the FMLA will not support a civil suit.

Substance abuse is not a separate FMLA-covered serious health condition.  Substance abuse may be an FMLA-covered serious health condition where it meets one or more of the definitions of an FMLA-covered serious health condition.  Where it meets one or more of these definitions, FMLA leave is only available for treatment.  It is not available for the employee's use of the substance. 

The court rejected Sons alternative argument that she would not have resigned if the defendant had granted her FMLA leave.  The court noted that the evidence established that Sons' resigned to avoid a public disciplinary hearing, not the denial of FMLA leave.  Additionally, the court noted that she would have likely been discharged for violation of the County's substance abuse policy.

Viewed in context, the consideration given by the court of the employee's admitted attempt to invoke the FMLA to avoid taking a drug test she knew she would fail appears to have been influenced by the dismissal of the case on other grounds, and the factual presumptions favoring the non-moving party (in this case, Sons) in summary judgment motions. With that said, the decision would have denied summary judgment to the employer for an employee's admitted attempt to defeat an employer's drug testing policy by requesting FMLA leave to seek immediate treatment.  The denial of summary judgment means that the case will likely proceed to trial.  Trials are very expensive.  Such expense may motivate the employer to settle.  In that sense, the decision should be helpful to employees.

The decision implies that, all other conditions having been met, an employer would violate the FMLA by disciplining an employee for refusing to submit to a drug test where the employee has properly invoked their right to immediate FMLA leave for substance abuse treatment.  Of course, the employee could be disciplined for violating the employer's policy for the admitted use of illegal substances that gave rise to the immediate need for FMLA leave.   

Finally, the employer could just have easily argued that the employee's admitted falsification of her prescription and subsequent denial of same was sufficient, independent grounds for termination.