The FMLA Blog

Two-Year Gap Between Last Use of FMLA Leave And Current Request Insufficient to Break Linkage for Employee Notice Purposes

In Fritz v. Phillips Service Industries, Inc. No. 06-11149, 2008 U.S. Dist. LEXIS 38266 (E.D. Mich. May 12, 2008), the employee requested leave on May 2, 2005, due to right knee pain.  Frtiz called and reported that he was unable to work due to his "knee condition."  In 2003, PSI had granted Fritz FMLA leave to undergo surgery on his right knee.  PSI was also aware that Fritz was scheduled to undergo another surgery on his right knee on May 24, 2005. 

On these facts, the court found that PSI had clear notice that Fritz had a serious health condition related to his right knee sufficient to shift the burden of inquiry to the employer to determine whether his May 2, 2005, request may be covered by the FMLA.  PSI did not inquire further, but immediately fired Fritz.  The employer had argued, unsuccessfully, that it was unreasonable to conclude that PSI should have known that the two events, the 2003 FMLA qualifying surgery and the May 2-3, 2005, were related.  The court denied PSI's summary judgment motion.

Comment:  The adequacy of an employee's request for leave that may be FMLA-qualifying is judged in light of an employer's institutional memory of the employee's past FMLA usage.  Where an employee links their otherwise innocuous current request for leave with a previously recognized FMLA condition, the employee will have satisfied their obligation to reasonably apprise the employer that the leave may be FMLA-qualifying.  Such linkage may be established despite the passage of several years since the last time FMLA leave was used.                  

To comply with the FMLA, employers should ensure that FMLA decision-makers have ready access to information regarding an employee's past FMLA usage in order to determine if their is any linkage with a current leave request.  It is doubtful that compartmentalization of this information within an employer will defeat a claim that the employer, as opposed to any one supervisor, was not on notice of the prior, approved FMLA leave usage. 

Similarly, employer's should put systems in place so that institutional memory of an employee's past FMLA usage is not lost because a leave administrator or supervisor transfers to another position or leaves the company.   

Feeling "Stressed Out" Insufficient Notice of Need for FMLA Leave

Absent a known prior medical history, an employee's complaints to his HR manager that he felt "stressed out" and did not know what to do, failed to reasonably apprise his employer that he needed time off for a serious health condition within the meaning of the FMLA.  The court observed

Indeed, "feeling stressed out"' is common to the workplace and hardly puts an employer on notice of a "qualifying condition" under the FMLA. 

Comment:  To perfect the right to take FMLA leave an eligible employee must impart sufficient information, through words, conduct, or both, to reasonably apprise the employer that the leave may be needed for an FMLA-covered condition.  In providing notice, the employee need not invoke the FMLA by name or use any "magic words."  The critical test for substantively-sufficient notice is whether the information that the employee conveyed to the employer was reasonably adequate to apprise the employer of the employee's request to take leave for a serious health condition that rendered him unable to perform his job.  If an employee provides enough information about a qualifying condition, the burden of inquiry shifts to the employer to seek further details to confirm that the leave may be covered by the FMLA.   

In Lackman v. Recovery Services of New Jersey, Inc., No. 06-2016 (RMB), 2008 U.S. Dist. LEXIS 11085 (D.N.J. Feb. 13, 2008), the employee's statement that he felt "stressed out" was so deficient that the court did not shift the burden of inquiry to the employer.  Courts have similarly found that employee requests for leave because they felt "sick" or "didn't feel well" failed to provide adequate notice that the leave may be covered by the protections of the FMLA.    

   

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.

Courts Find that Bizarre Behavior, But Not Chronic Tardiness, Provided Employer Constructive Notice of Employee's Need for FMLA Leave

Courts in two recent cases addressed whether an employee's actions provided the employer with sufficient, constructive notice that the employee may need FMLA leave to shift the burden of inquiry to the employer to determine if FMLA leave should apply. 

In Stevenson v. Hyre Elec. Co., No. 06-3501, 2007 U.S. App. LEXIS 24197 (7th Cir. Oct. 16, 2007), the Seventh Circuit found that the employee's bizarre behavior may have put her employer on constructive notice that the employee may need FMLA leave.  In that case, Beverly Stevenson had an extreme emotional and physical response to a stray dog entering her workplace at Hyre Electric.  After seeing the dog at work, Steven confronted her supervisor for several minutes, yelling, cursing, and screaming that animals should not be in the workplace. She left work early that day, and called in the next several days complaining that she wasn't feeling well."  When she returned to work a few days later, Steven angrily and aggressively confronted Hyre's president, yelling and cursing about dogs in the office.  The explosive meeting lasted eight to ten minutes, and was overheard by other employees.  Stevenson filed a complaint with OSHA regarding the dog incident. 

Prior to the incident, Stevenson had been a model employee with no prior discipline.

Stevenson left work and went to the hospital complaining about headaches for three days.  EKG and CAT scans came back normal, although she was diagnosed as suffering from stress and anxiety.  Stevenson called in sick the next two days.  She returned a few days later and, when she discovered that the contents of her desk had been boxed up and moved to another room, she called the police and went home. Stevenson left the Hospital report on her supervisor's desk. 

Hyre sent Stevenson a letter informing her of her FMLA rights, and requested medical documentation.  Stevenson called in sick the next few days, during which she saw several doctors.  Stevenson did not return to work the next several days, allegedly on the instruction of her Union.  She was subsequently terminated.

The Court initially found that Stevenson was put on notice that she might have an FMLA condition when she was diagnosed with anxiety and stress.  The diagnosis triggered her FMLA obligation to notify her employer within one or two working days that she may need FMLA leave.  The court found that Stevenson failed to notify Hyre failed to give her employer notice that she needed leave for an FMLA covered serious health condition when she subsequently called in "sick" or by reporting that she was not "feeling well." 

The court rejected the argument that Hyre's notification to Stevenson of the availability of FMLA leave constituted an admission that Hyre had notice that the leave was FMLA-qualifying. The court observed:

... if notice could be presumed whenever an employer asks an employee if she needs FMLA leave, then the FMLA notice requirement would be rendered meaningless.

Absent direct notice from the employee, the court next considered whether the employee provided constructive notice of the need for FMLA leave, as permitted by Byrne v. Avon Products, 328 F.3d 379 (7th Cir. 2003).  In Byrne, the Seventh Circuit recognized that an employee was excused from providing direct notice of the need for FMLA leave in two situations: (1) where the employee is unable to communicate his or her illness to the employer; or (2) clear abnormalities in the employee's behavior provide the employer with constructive notice of a serious health condition.

The Seventh Circuit reversed the award of summary judgment to the employer after finding that district court had improperly merged the two Byrne exceptions.  The district court had found that the Bryne exception did not apply because Stevenson's condition did not prevent her from notifying her employer of the need for FMLA leave.  The Seventh Circuit reiterated that, under Byrne, "unusual behavior alone can be enough to notify a reasonable employer that an employee suffered from a serious health condition.

The Seventh Circuit went on to find that whether Stevenson's behavior was sufficiently "bizarre" as to provide constructive notice that of the existence of a serious health condition to shift the burden of inquiry to Hyre was a triable issue of fact.  The court observed:

Lengthy encounters of yelling and swearing at one's superiors so severe that a company locks out an employee with a previously unblemished record for safety concerns, coupled with the employee's calling the police because her belongings have been moved to another desk, are undeniably unusual and could be viewed by a trier of act as unusual enough to give Hyre notice of a serious health condition.  Of course, the fact-finder could find that Stevenson just had a bad temper that erupted during the period in question.

In Brown v. Eastern Maine Med. Center, No. 06-60-P-H, 2007 U.S. Dist. LEXIS 76967 (D. Me. Oct. 15, 2007), the trial court rejected the employee's argument that her chronic lateness provided her employer with constructive notice that she needed FMLA leave "especially in the complete absence of any explanation from Brown that her late arrivals were "medically necessary" as required for FMLA intermittent leave."  The court also noted that Brown also failed to provide notice of the anticipated timing and duration of her need for intermittent leave, as required by the FMLA regulations.  The court noted that the late arrivals were a common, not an unusual, occurrence.      

Comment: Under Byrne, bizarre behavior by an employee may place an employer on constructive notice that the employee has a serious health condition sufficient to shift the burden of inquiry to the employer.  The serious health condition does not have to render the employee unable to directly request FMLA leave.  Under Byrne, an employee who is unable to articulate a need for leave due to a serious health condition may, however, be excused from directly requesting FMLA leave.  This is a separate exception from the bizarre behavior exception to the general rule that an employee must provide his or her employer with direct notice of the need for FMLA leave.  An employer that fails to inquiry further and denies the employee FMLA leave runs the considerable risk of violating the FMLA.      

Under Brown, an employee's absences alone may not be sufficiently "unusual" or "bizarre" to constitute constructive notice that the employee, under Byrne, has a serious health condition requiring FMLA leave.

Until more circuits weigh-in on Byrne, employers shoulld add FMLA considerations to the mix when considering whether to take disciplinary action against an otherwise good employee who has engaged in unusual behavior.   The Seventh Circuit covers Wisconsin, Illinois, and Indiana.   

Normal FMLA Employee Notice Requirements Do Not Apply Where Employee Uses Sick Leave

Generally, where the need for FMLA leave is foreseeable, an employee should give an employer 30 days advance notice of the time the employee needs off.  29 CFR 825.302(a).  If the need is foreseeable but with less than 30 days advance notice of the need, the employee should notify his or her employer of the need for FMLA leave "as soon as practicable," normally within one or two working days of learning of the need for leave.  29 CFR 825.302(a).  An employer may delay or, in some cases, deny leave to an employee that fails to provide timely notice of the need for FMLA leave. 

The FMLA allows for the substitution of available paid leave for unpaid FMLA leave.  Where paid leave is substituted, an employer must apply any less onerous notice requirements permitted by the employer's paid leave policy.   For example, if an employee (or employer) elects to substitute paid vacation leave for unpaid FMLA leave and the employer's paid vacation leave plan imposes no prior notification requirements for taking such vacation leave, no advance notice may be required for the FMLA leave taken in these circumstances.  29 CFR 825.302(g). 

The interplay of the notice requirements of paid leave with unpaid FMLA leave was recently addressed in Simpson v. Office of the Chief Judge, No. 05 C 2592, 2007 U.S. Dist. LEXIS 75634, at *21-23 (N.D. Ill. Oct. 11, 2007).  There, the employer argued that the employee failed to give timely advance notice of the need for FMLA leave incident to planned surgery.  The employee gave notice the day before her absence was to begin.  Simpson took sick leave concurrent with FMLA leave.  Under the employer's sick leave policy, an employee was required to notify a supervisor "a minimum of one hour prior to beginning their tour of duty" that the needed to take sick leave.  The court, citing 29 CFR 825.302(a), found that Simpson provided timely notice of the need for FMLA leave.

Comment:  The case, surprisingly one of only a very few, reminds us that an employer's paid leave policies may greatly reduce the amount of advance notice of the need for FMLA leave that an employer may require an employee to provide.  Employers should review their paid leave policies to determine if changes need to be made so that they get the maximum advance notice of the need for FMLA leave that they are entitled to receive under the Act.  Where the employer has a labor union, such changes may require collective bargaining.

Employee's Unilateral Announcement That He Would Change His Work Schedule Was Insufficient Notice of Need for FMLA Leave

In Costello v. Public Service Enterprise Group, No. 05-3344 (AET), 2007 U.S. Dist. LEXIS 64145 (D.N.J. Aug. 30, 2007), the employee was upset as a result of delays in assigning him to a 4-week rotation day shift schedule.  He complained that the delay in assigning him a shift schedule was making it difficult to care for his seriously ill father.  At all relevant times, PSEG knew that Costello had taken time off to care for his father. 

After a few months without resolution, Costello informed management in writing that he would no longer be reporting for work as scheduled, and that he had unilaterally decided to assign himself to a 4-week rotation shift schedule.  The letter detailed Costello's qualifications for the position.  It also reiterated that his current schedule was causing problems regarding his ability to provide care to his elderly father.  Costello missed several days of work.  The days missed coincided with days off under his unilaterally assigned shift schedule.  PSEG terminated Costello after he refused to report to work as scheduled by the employer. 

Costello argued that his termination violated the FMLA.  The court disagreed.  The court found that the letter failed to provide PSEG with sufficient notice that Costello's was seeking FMLA leave.  The court noted:

Here, finding Plaintiff's July 3, 2003 letter sufficient to constitute an exercise of FMLA rights would require PSEG to be not only clairvoyant, but to disbelieve the precise reason Plaintiff offered for his absence, and conclude instead, based upon alleged knowledge that he cared for an ailing father, that he intended to take FMLA leave instead of scheduled days off.  The Court will not impose such a requirement... Here "[t]here was no reason for [PSEG] to believe anything else concerning Plaintiff's [absence] except what Plaintiff told them"; he wanted a new work schedule, and if PSEG was not going to give it to him, he was going to take it.  Id.

As further evidence that the schedule change was not a request for FMLA leave, the court noted that Costello had successfully requested FMLA leave in the past. 

Comment: The FMLA entitles eligible employees to leave for covered conditions.  The FMLA does allow an employee to unilaterally change their schedule to a different shift that better accommodates their need for FMLA leave.  At most, the FMLA allows an eligible employee to alter their current schedule by use of leave on an intermittent or reduced leave schedule until their 12-week entitlement is exhausted.

For me, the decision is problematic.  In finding the employee's notice of the need for leave insufficient the court focuses on the part of employee's letter that discusses his qualifications for the position on the desired shift as evidence that the employee simply wanted a schedule change.  The decision, in my opinion, does not sufficiently credit Costello's initial rationale (which is also set forth in the letter) for seeking a schedule change: the need to take care of his seriously ill father.  The decision could have easily gone the other way, particularly since there was no evidence that PSEG made additional inquiries to determine if the schedule change to care for the parent was covered by the FMLA.      

In my opinion, the court appears to have been unimpressed with Costello's unilateral announcement that he was changing his schedule in the absence of evidence that he in fact needed FMLA leave to care for his father beginning on the date of his unilateral schedule change.  Employees who are upset about the pace of their employer's consideration of their request for leave or a schedule change should think long and hard before unilaterally taking matters into their own hands, particularly where the need for leave is foreseeable and they are aware of how to request FMLA leave.

Because I believe that a different outcome could have resulted had the court been more inclined to view the employee's unilateral change in schedule as a frustrated request for FMLA leave, I think there is a better than even chance that the award of summary judgment to the employer could be overturned on appeal.             

               

   

   

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.

Need for Leave Was Foreseeable Based on Employee's Knowledge of Pregnant Spouse's Due Date

In Tafelski v. Novartis Pharmaceuticals, No. 05-71547, 20007 U.S. Dist. LEXIS 22847 (E.D.Mich. March 28, 2007), the Court found that the employee failed to timely request FMLA leave at least 30 days in advance.  Because the employee knew his wife was pregnant and knew the due date more than 30 days in advance of his need for leave, the employee's request for leave 4 days before her due date was untimely.

Comment:  The decision effectively holds that leave may be foreseeable more than 30 days in advance even though the exact date the leave will commence is unknown, at least where pregnancy is concerned.      

Delay in Processing FMLA Leave Request Interfered with FMLA Even Though Employee Was Never Denied Leave During the Interim and Was Ultimately Granted FMLA Leave

An employer's failure to provide the forms required by the company to request FMLA leave for several months despite repeated requests by the employee interfered with the employee's FMLA rights by discouraging the employee from taking FMLA leave, even though the employee was allowed to take leave while she waited for the forms and was ultimately granted FMLA leave.   

Employee Does Not Have to Request FMLA Leave Prospectively in All Instances

In Fernandes v. Wal-Mart Stores, Inc., No. 03-11933-RGS, 2007 U.S. Dist. LEXIS 14618 (D. Mass. Mar. 1, 2007), Wal-Mart terminated Fernandes for exceeding the allowable absences and tardies under Wal-Mart's attendance policy.  Wal-Mart policy recorded each unscheduled instance when an employee was away from work as an "absence."  An employee who incurrs more than 6 unapproved absences in a rolling six month period are discharged. 

Fernandes had informed Wal-Mart that he was asthmatic.  On October 3, Fernandes experienced an asthma attack several hours prior to his scheduled shift. He called his Assistant Manager and told him he could not come in because of the attack. Fernandes had October 4 off.  On October 5, Fernandes called in sick again complaining of asthma.  A review of his attendance record revealed that, with prior absences and tardies, Fernandes had exceeded 6 unscheduled absences.  He was terminated on his return to work.  Significantly, the employer refused to hear Fernandes' objections or to review Fernandes medical records. 

Fernandes sued alleging that he was terminated in violation of the FMLA.  Wal-Mart moved for summary judgment, arguing that Fernandes failed to request FMLA leave either before or after his absences.  Rejecting Wal-Mart's argument, the Court noted that the FMLA does not require that an employee request FMLA leave in advance in all instances.  The Court observed:

{A]n employee "should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case."  29 CFR 825.303(q). 

The Court agreed with Fernandes argument that he had no prior opportunity to request leave because of the unforeseeable nature of the asthma attacks.

The Court also rejected Wal-Mart's argument that Fernandes failed to provide adequate notice that his absences were covered by the FMLA on his return to work.  The Court agreed with Fernandes that Wal-Mart failed to afford him the opportunity to request FMLA leave retroactively when it declined to hear his explanation or review his medical records.

Finally, even if it agreed with Wal-Mart's argument that asserting the need for leave due to an "asthma attack" was too vague to put Wal-Mart on notice that he was suffering from an FMLA-covered serious health condition, the Court nevertheless found that, in cases of unanticipated lave "the FMLA places the burden on the employer to request medical certification of a serious health condition from the employee."  As Wal-Mart failed to request certification, the Court denied Wal-Mart's motion for summary judgment.

Comment:  An employer cannot use the taking of FMLA-qualifying leave as a negative against an employee.  An employee can provide timely notice of the need for unanticipated FMLA leave "as soon as practicable," which might be after the employee returns to work.  Generally, "as soon as practicable" means one to two business days from when the employee learned that the leave might be FMLA-qualifying.  Here, Fernandes arguably supplied adequate notice of the need for leave on both days he called in.

To avoid violation of the FMLA, employer's should allow an employee to expain the reason for an unaticipated absence and review medical documentation the employee presents to determine both if the leave is FMLA qualifying and if the employee provided notice "as soon as practicable."   

In reaching what I believe to be a correct result the decision stumbles a bit.  The Court's observation that an employer is obligated to request medical documentation where the need for leave is unanticipated to determine if it is FMLA-qualifying is flat out wrong.  The Court appears to be confusing the employer's obligation to inquire further if it needs more information to determine if leave is FMLA qualifying (29 CFR 825.303(b)) with the medical certification process.  An employer may, of course, require an employee to submit medical certification to substantiate that they have an FMLA-covered serious health condition entitling the employee to FMLA leave. The FMLA does not, however, require an employer to ever ask for medical certification.