The FMLA Blog

Placement on Involuntary Leave Requires Adequate Notice by Employee of a Serious Health Condition to Gain FMLA Protections

Whether an employee must provided sufficient notice to an employer of the need for FMLA leave applies where an employee, over their objection, is involuntarily placed by the employer on leave, was addressed by the Fifth Circuit in Willis v. Coca Cola Enterprises, Inc. 2006 U.S. App. LEXIS 7876 (5^th Cir. March 31, 2006).  In that case, the employee did not request FMLA leave.  Rather, the employee was placed on involuntary leave when her supervisor refused to permit her to return to work until she proffered a medical release and then, while she was on this mandated leave, fired her for non-compliance with the leave policy of the company.  Initially, the court found that the placement of an employee on “involuntary FMLA leave” is permitted by the FMLA.  Regarding employee notice, the court held that, even in the case of involuntary leave, the employee is required to provide sufficient notice to an employer of the need to take FMLA leave.  Critically, the court found that the “every time an employer chooses to place an individual on leave that the FMLA is triggered.”  Rather, to implicate the FMLA, the employee must provide sufficient information for the employer to determine whether the leave is FMLA-qualifying. The placement on involuntary leave pending medical release suggests only that the employer was aware that Willis had a medical problem, the court found.  It does not establish that it was aware that she had a serious health condition.  As such, the leave was not covered by the FMLA.

Comments:  Courts are spit regarding the effect of an employer’s involuntary placement of an employee on leave due to a medical condition and employee notice requirements.  Some courts have suggested that such involuntary placement relieves the employee of the FMLA notice requirement. 

Period of Absence Alone Insufficient Notice of Employee Need for FMLA Leave

In Phillips v. Quebecor World RAI, Inc., No. 05-3744, 2006 U.S. App. LEXIS 14328 (7^th Cir. June 12, 2006), the Seventh Circuit held that an employee’s three-day absence alone was insufficient notice of a need for FMLA leave.  There, the employee left work early indicating only that she was “sick.” The employee subsequently submitted a medical form indicating that she would be off from October 15 until October 19.  The employer charged the employee with being absent for purposes of the company’s attendance control program.  The employee argued that the absence should not have counted against her but should have been covered by the FMLA.  Regarding notice, the employee argued that the time period of her absence alone was sufficient to establish that she was undergoing “continuing treatment” by a health care provider.  The Seventh Circuit disagreed.  The court found that, even if the employee has a qualifying period of incapacity, the regulation (29 CFR 825.114(a)(2)(i)) still required that it be accompanied by either treatment two or more times by a health care provider or treatment once followed by a regimen of continuing treatment.  The court held that, without more, proof of the three-day absence provided insufficient notice that the leave may qualify as FMLA leave.  To be adequate, the notice needed to address the accompanying health care provider treatment.

Comment:  The decision is noteworthy in that the court did not shift the burden of inquiry on to the employer because it was on notice that the absence would exceed three consecutive days.  Section 825.208(a) of the DOL regulations provides that if the employer does not have sufficient information about the reason for an employee’s use of paid leave, the employer should inquire further of the employee “as necessary to designate the leave,” and may “obtain additional required information through informal means.”  The decision of the Seventh Circuit strongly suggests that an employer’s knowledge that the length of a period of leave could involve the FMLA will not, by itself, shift the burden of inquiry to the employer.   Courts are all over the place on when the burden of inquiry shifts to the employer.