The Federal Sector FMLA Blog

"Heads-Up" that Employee "Might" Need FMLA Leave Insufficient to Invoke FMLA Protections

Upon learning that his wife was pregnancy and due in early 2008, Chad Wilson told his supervisor that he might need to take leave to care for his newborn if his mother-in-law was unavailable.  Wilson was subsequently terminated for dismissing his supervisor's concerns about Wilson''s failure to follow the chain of command regarding a pay issue. 

Wilson sued alleging that his termination was in retaliation for exercising FMLA rights.  He argued that he engage din FMLA-protected activity by requesting leave to care for his child.  The FMLA provides that an employee must "provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave."  29 CFR 825.302(c). 

The Fifth Circuit found that Wilson failed to provide adequate notice of the need for FMLA leave.  Wilson, the Court observed, " never informed Noble that he intended to take leave, only that he "might" need to take leave and that there was a "possibility" that he would need to take leave."  The Court held that these comments were insufficient to make his employer aware that he needed FMLA-qualifying leave.

The Court also found that Wilson failed to notify his employer of the "anticipated timing and duration" of any leave.  Wilson conceded that he did not get into any specifics as to who, what, when, or where of the leave.  Telling his supervisor that he "might" need to take leave "early in the year after the baby was here" failed to inform the employer of the anticipated timing and duration of the leave, the Court held.

The Court held that Wilson failed to establish that his removal was in retaliation for requesting FMLA leave.

Wilson v. Noble Drilling Service, Inc., 10-20129 (5th Cir. Dec. 23, 2010)

Comment:   While employees need not invoke the FMLA by name when requesting leave, they must provide their employer with sufficient information to alert the employer that FMLA leave may be needed.  Telling an employer that you "might" or "possibly" may need FMLA leave, even for an FMLA-qualifying reason, is not sufficient.  To be a valid request, courts also want more specificity in terms of the timing and duration of the leave. Employees do not invoke the protections of the FMLA by telling your employer that you may need leave at unnknown time in the future.  To invoke the FMLA, employees need to provide more specifics, not less, when requesting leave.   

Jordan To was employed by US Bank as a Senior Research Clerk.  While employed, To joined the Minnesota National Guard.  As ordered, To attended Guard training at Fort Benning for approximately three months.  He kept his employer informed of his expected return to work.  When his return date came, To called his supervisor and informed him that because he was feeling tired, lethargic fatigue-ish he needed a few days off to recuperate and would not be back to work as previously planned.  To was told that, to be excused, he would need a doctor's note, which To provided.  To provided a doctor's note, which excused his continuing absence from work citing only "illness."  As his revised return days approached, To would call his supervisor requesting additional leave because "he was still not feeling well."  A second doctor's sought to excuse his continuing absence due to "illness."  The pattern continued of more calls to work asking for additional leave because he "was still feeling the same symptoms."  Eventually, To remained absent from work but stopped calling his supervisor as required by US Bank policy.  US Bank fired To.  To sued, alleging violation of the FMLA.  US Bank moved for summary judgment. 

In awarding summary judgment to US Bank, the court found that To had failed to provide adequate notice of his need for FMLA leave.  In the Sixth Circuit, whether an employee provided adequate notice of the need for leave is based on whether the information imparted to the employer is sufficient to reasonably apprise the employer that the need for leave is due to a serious health condition.  An employee must explain their need for leave in a way that makes it reasonably plaint that the employee's health condition is serious and that this is why the employee needs to be absent.  By informing his employer that he "was felling ill, tired, lethargic, fatigue-ish... and that he needed a few days to recuperate," To failed to reasonably apprise US Bank that his need for leave was due to an FMLA-covered serious health condition.  As additional evidence of To's failure to provide adequate notice, the Court also cited the doctor's slips, which simply referenced "illness" as the reason he needed to be absent from work. 

The Court also found that US Bank had the right to terminate To for violating company policy requiring him to notify his supervisor, not someone else, of his need for leave.  Under US Bank policy, an employee who is absent for two consecutive work days and who fails to report those absences to their immediate supervisor is considered to have abandoned their job.  That, the Court found, is what happened in this case.  Absent unusual circumstances, the FMLA allows an employer to enforce their usual and customary leave policies and procedures.  29 CFR 825.302(d).  The Court found not "unusual circumstances" that prevented To from complying with US Bank's direct reporting requirement.  

Comment:  To perfect the right to job-protected FMLA leave, employees do not have to invoke the FMLA by name (although they may).  Employee's must, however, articulate facts that arguably fit one or more FMLA-covered serious health conditions.  Claiming that you are "ill," or "sick," or "fatigued" simply fails that test.  Courts have uniformly held that such generic language fails to reasonably alert the employer that the need for leave is due to a "serious" health condition that might be FMLA-qualifying. 

Even if To had provided adequate notice of the need for leave, US Bank would have been within its right to deny FMLA leave coverage and terminate him for violating the company's leave reporting policies and procedures.  To perfect the right to FMLA leave, employees must provide adequate notice of the need for leave, and abide by their company's leave reporting policies. An employee might be excused both from providing adequate notice and complying with the employer's leave reporting policies if they were unable to do so.  That was not the case with To. 

The Court in To interpreted the employee notice standards set forth in Title I of the FMLA.  The MSPB applies case law interpreting Title I of the FMLA on employee notice to Title II cases under the OPM FMLA regulations.  To should, therefore, be instructive on the adequacy of employee notice in Title II cases.   

To v. US Bancorp, No. 08-5979 (JRT/JJK), (D. Minn. Sept. 7, 2010)

http://www.leagle.com/unsecure/page.htm?shortname=infdco20100907a83

Non-Compliance with Employer's More Stringent Leave Procedures May Not Justify Denial of FMLA Leave

Shauna Saenz was approved for intermittent leave for partial complex epileptic seizures. The letter approving the leave indicated that Saenz needed to request FMLA leave by contacting a third party provider (Hartford) no later than 2 days after each time she took intermittent leave.  The letter warned that failure to provide the necessary notice could result in the loss of FMLA protection.  Without incident, Saenz exercised her right to intermittent leave 9 times in the ensuring five months.  Each time, the letter approving the leave referenced the 2-day n notice requirement.  Saenz missed work on December 29-31 and January 3-4. 

On December 28, Rhonda Galloway, Saenz's mother, discovered Saenz hallucinating and disoriented.  Galloway determined that Saenz could not work that day, and informed Saenz's immediate supervisor.  Galloway also informed a higher level supervisor of the need for leave.  Galloway took Saenz to the emergency room of the hospital where she worked for treatment. The higher level supervisor personally came and visited Saenz while she was in the emergency room.  Gallow secured a court order appointing her to be a guardian of her daughter for purposes of making medical decision.  Saenz was subsequently transferred to another health care facility for treatment.  She was released three days later.  On her release, she stayed with her mother.  Galloway called Saenz's immediate supervisor, explained what had happened in the interim, and requested an indeterminate amount of leave.  The supervisor reminded Galloway that Saenz was required to request leave through Hartford.  Galloway apparently did not call The Hartford.  Saenz was subsequently diagnosed with bipolar disorder.  Saenz called The Hartford on January 9 regarding her absences of December 29, 30, 31, and January 3 and 4, 2007.  The Hospital subsequently terminated her employment due to her non-FMLA approved absences. The letter explained that her absences were not FMLA-approved because she failed to request leave within two days of her hospital discharge as required by the employer's policy. 

Saenz sued the hospital alleging violation of the FMLA.  The district court awarded summary judgment to the hospital.  Saenz appealed to the Fifth Circuit.  The Fifth Circuit reversed the decision of the district court. Specifically, the court found that, pursuant to 29 CFR 825.303, Saenz contacted the hospital "as soon as practicable" and provided enough information to hospital staff to alert her employer that she was requesting FMLA leave.  The fact that she did not timely contact the third party provider within two days as required by the hospitals' more restrictive policy was not, the court concluded, controlling.  In that regard, the FMLA establishes a more relaxed notice requirements, which is all the employee was required to satisfy.  

Shauna Saenz v. Harlingen Medical Center, L.P., No. 09-40887 (5th Cir. Aug. 2, 2010). http://www.ca5.uscourts.gov/opinions/pub/09/09-40887-CV0.wpd.pdf

 

Comment:  The decision, in my opinion, correctly determined that, under the circumstances, the employee timely provided adequate notice of the need for FMLA leave "as soon as practicable."  The court also correctly determined that, to perfect her request for FMLA leave, the employee need only satisfy the minimum requirements of the FMLA leave, and not the more stringent procedural requirements imposed by the employer's policy.

The decision is based on the pre-2009 revisions to the DOL regulations.  The court correctly declined to aply the post-2009 DOL notice regulations retroactively.  As revised, the "new" DOL notice regulations provide that, absent unusual circumstance, an employee must abide by an employer's "usual and customary" notice and procedural requirements for requesting unforeseen leave.  See 29 CFR 825.303(c).  In dicta, the Fifth Circuit observed that, if the new standard applied, the employer "might very well be entitled to summary judgment." Opinion at n. 9.  My opinion: If the circumstances of this case are not "unusual," the term has no meaning.   On these facts I don't' believe the result would, or should, change.

The lesson: an employee who is incapable of complying with an employer's more stringent "usual and customary"notice procedures may still be entitled to FMLA leave if they satisfy the minimum notice requirements of the FMLA. An employee who fails to adhere to the employer's leave requesting procedures may, however, be subject to discipline for such failure even though FMLA leave was granted. 

Employers Are Not Required to Assume That All Medical Absences Subsequent to Chronic Serious Health Condition Diagnosis Are Related to that Condition

Jeremy Crown was diagnosed with Type I Diabetes in August 2006.  Nissan, his employer, granted his request for 10 days of FMLA leave to cover the absence that led to the diagnosis.  In October 2007, Crown was absent from work for three consecutive days.  Crown claimed that the absences were related to his Diabetes.  Pursuant to Nissan policy, he submitted a medical certification substantiating his request for FMLA leave to cover the absence.  The health care provider who filled out the certification checked the box for an absence of more than three consecutive days.  The health care provider did not check the box for a chronic condition.  Nissan denied the request for FMLA leave because Crown was not incapacitated for more than three consecutive calendar days.  Nissan also assessed Crown with 4 points for unexcused and excused absences.  The four points put him over the company's attendance policy limit.  Crown was terminated.

Crown sued alleging that his termination violated the FMLA.  Crown argued that, notwithstanding the failure of the medical certification to substantiate his request for FMLA leave, Nissan should have granted him FMLA leave anyway.  Crown reasoned that Nissan knew he had an FMLA-covered condition (Diabetes) since August 2006.  It knew that the condition would continue for an indefinite period.  As such, Nissan, Crown argued, should have known that this three-day absence in October 2007 resulted from a period of incapacity due to his chronic serious health condition because it was aware that he had this condition and was likewise aware that the condition had previously necessitated leave.  Crown contended that he should not be penalized because of the lack of competence or familiarity of the health care provider who filled out the certification.  The court disagreed.  

The court rejected as without merit the argument that Nissan should have known that that his absences were related to his chronic condition despite the health care providers failure to so indicate simply because it knew he had been earlier diagnosed with a chronic condition.  The court observed:

By this argument, plaintiff is, in effect, contending that once an employer is on notice that an employee has a chronic health condition, the employer must thereafter assume that all medical absences from work are related to that condition. This position is directly contradicted by those provisions of the FMLA which permit the employer to require notice that leave is requested for a a qualifying reason and which authorize the employer to require the plaintiff to furnish certification for his health care provider that each period of absence is covered by the FMLA. 

The court went on to observe that "[t]he FMLA does not require an employer to be 'clairvoyant.'"  If an employee fails to provide its employer with the required notice, the employer can deny leave even if the employee has a serious health condition. 

The court awarded summary judgment to Nissan.

Crown v. Nissan North American, Inc., No. 3:08CV418TSL-JCS, 2009 U.S. Dist. LEXIS 47633 (S.D. Miss. June 8, 2009). 

Comment:  To ensure FMLA coverage where an employee or covered family member has a previously established qualifying reason for FMLA leave, it is incumbent on the employee to link the present need for leave with the known qualifying reason.  Courts will not assume such a connection, particular where, as in Crown, the connection is not substantiated in a supporting medical certification. 
The DOL codified the linkage requirement in 29 CFR 825.303(b) of the modified regulations.

The case also teaches employees that they should review the medical certification before handing it in to ensure that it supports the request for leave.  If it does not, or if the employee has any questions regarding the information on the form, the employee should take the matter up with the health care provider before submitting the documentation.  The health care provider should make any corrections on the certification form.  The employee should NOT modify the certification form.    

The MSPB has applied Title I (DOL) employee notice requirements to Title II (OPM) FMLA requirements. 

"Buyer's Remorse" Insufficient to Establish Interference Claim Where Employee Knowingly Elected Not to Exercise FMLA Rights

In Righi v. SMC Corp. of America, No. 07-cv-1064, 2009 U.S. Dist. LEXIS 15429 (C.D. Ill. Feb. 27, 2009), the employee requested leave to care for his mother, a diabetic who was hospitalized after accidentally took an overdose of mediation. At the time, SMC was aware that the employee was caring for his mother due to her medical condition.  SMC had approved leave for this purpose in the past. As a result of his mother's overdose, the Righi requested "a couple of days off" to make medical care arrangements for his mother. In the e-mail requesting leave, Righi mentioned that, although he could apply for FMLA leave, he did not want to do so at this time.  Instead, he asked for vacation.  On receipt of the e-mail, SMC made several unsuccessful attempts to contact Righi.  Righi admitted later that he turned off his cell phone for a week.  Righi was subsequently terminated for violating SMC's call-in policy.  Righi sued alleging interference with the FMLA.

Righi argued that his e-mail message referencing the FMLA was sufficient to place SMC on notice that he was, in fact, asking that his absence be covered by the FMLA.  In rejecting the argument and awarding summary judgment to SMC, the Court found that the burden of inquiry never shifted to SMC to determine if the absence might be covered by the FMLA. The Court found that SMC was not legally obligated to ignore the employee's own statement that he was not interested in applying for approved FMLA leave to cover his absence.  Nor was SMC required to persuade an employee to take FMLA leave where the employee has indicated they do not wish to.

Comment:  Employees who seek FMLA protections after they have knowingly elected not to exercise their FMLA rights (in order to preserve the ability to use FMLA leave in the future) have not fared well in the courts. To get over this high hurdle, employees would need to show that, for example, the employer failed to satisfy its notice requirements, or that the employer otherwise misled the employee regarding FMLA rights and responsibilities. 

The case is a reminder that an employee who decides to use non-FMLA leave in order to preserve it for future use risks discipline.  

Notice "As Soon As Practicable" Triggered on Possibility of Need for FMLA Leave

David Valdivia, an inbound electrician for BNSF, suffered from migraine headaches for which he had been granted intermittent FMLA leave in the past.  Valdivia was prescribed Maxalt to treat his migraines.  One of the side-effects of Maxalt caused Valdivia to occasionally fall into a deep sleep for up to 27 hours.  When he takes Maxalt on a day he is scheduled to work Valdivia would set his alarm clock to wake him, which did not always work.  If family members were home, they would also wake him up in time to make his shift.  To avoid AWOL, BNSF policy required Valdivia to either report to duty on time or call-in and request FMLA before the start of his shift.

After working the midnight shift on August 19, Valdivia felt the onset of a migraine on his way home from work.  He took Maxalt at 9 am, and set his alarm for 11 pm in order to make the midnight shift.  He took Maxalt again at 2:00 pm.  Valdivia not only slept through his alarm, but through his entire shift (18 hours).  When he awoke he called BNSF, explained what happened, and requested FMLA leave.  Long story short, BNSF denied the request, charged Valdivia with AWOL, and issued him a 20-day suspension.  Valdivia sued alleging that BNSF interfered with his FMLA rights. 

There was no question that Valdivia suffered from an FMLA-covered serious health condition (migraines) generally, and on the day in question.  Nor was there any question that the onset of the migraine was not foreseeable.  The case turned on whether Valdivia gave BNSF notice of his unforeseen need for FMLA leave "as soon as practicable under the facts and circumstances of the case," as required by 29 CFR 825.303(a) of the DOL FMLA regulations.  The court found that Valdivia did not notify BNSF as soon as practicable of his need for FMLA leave.

Based on circumstantial evidence, the Court found that Valdivia knew he would need FMLA leave as of 2 pm, when he took his second dose of Maxalt.  The Court also found that it was possible and practicable for him to notify BNSF of his need for leave at that time.  The Court noted that  Valdivia knew at that time he took his second dose that just one dose of Maxalt could cause him to sleep through his alarm.  Notwithstanding that knowledge, he made no arrangement for family members to awaken him after he took his second dose.  The court observed:

At trial, plaintiff admitted that if he had called in to request leave, then recovered in time to work, he could have reported to work as usual with no adverse consequences.  Plaintiff's decision to play the odds and wait until the last minute to re-assess his situation did not postpone his obligation to give notice as soon as practicable and possible under the FMLA.

Valdivia admitted that it was not impossible or impracticable for him to give notice at 2 pm.  He argued that BNSF policy only required him to call before the beginning of the shift.  The Court dismissed various hypothetical scenarios offed by Valdivia demonstrating that he could have called in after 2 pm but before his shift.  In so doing, the court rejected the argument that BNSF's more generous-call-in policy exonerated Valdivia's duty under the FMLA to give notice as soon as practicable.  The court concluded:

If the Court were to allow plaintiff to use BNSF policy as a sword in FMLA interference litigation, it could unintentionally discourage the very kind of dialog and communication which the FMLA is intended to promote.

Comment:  The decision illustrates two points.  The first is how the court interpreted "as soon as practicable under the facts and circumstances of the case."  The Court focused on when, in its estimation, Valdivia should have known that he would need FMLA leave.  In so doing, the Court fixed that awareness based on the possibility that he might need FMLA leave because, in the past, he occasionally slept through his alarm when taking just one dose of Maxalt.  Setting the point in time when an employee should realize they may need leave based on the mere possibility of that need is a fairly low standard.  

Second, the court's dictum that BNSF's more generous call-in policy does not supersede the FMLA's "as-soon as practicable" notice requirement is at odds with the FMLA.  The observation is dictum because Valdivia, in fact, did not notify BNSF prior to the start of his shift that he may need FMLA leave.  The court did not need to address what might have happened had Valdivia not slept through his entire shift. 

Moreover, court's dictum is clearly wrong.  The FMLA allows an employer to provide greater leave benefits than the minimum required by the FMLA.  Where an employer provides more generous leave benefits, the FMLA requires the employer to abide by those benefits.  Here, allowing an employee a greater amount of time to request leave than the minimum required by the FMLA is a form of greater leave benefit.  The court's observation runs contrary to the plain language of the Statute and DOL regulations.  See 29 USC 2652(a); 29 CFR 825.700(a).

OPM regulations are phrased differently than the DOL regulations where the need for leave is not foreseeable. The OPM standard requries notice "within a reasonable period of time appropriate to the circumstances."  While it could be argued that OPM's decision to use different language rather than merely adopting the DOL standard (which it could have done, 5 USC 6387) strongly suggests that the standards are not the same.  As a practical matter, however, the standards appear to be sufficiently similar such that the Valdivia decision could be used as persuasive authority to interpret the comparable Title II employee notice requirement in 5 CFR 630.1206(c).  Generally speaking, the MSPB has looked to caselaw interpreting the DOL employee notice standards for guidance regarding Title II employee notice standards.                

Valdivida v. BNSF Railway Co., No. 07-2467-KHV, 2008 U.S. Dist. LEXIS 10828 (D. Kan. Sept. 30, 2008)

Crying Cited as Evidence of Request for FMLA Leave

Susan and Paul Murphy, husband and wife for 22 years, were employed as truck drivers by Watkins Motor Lines, which was subsequently purchased by FedEx.  Due to a serious illness, Paul went on approved FMLA leave.  His wife went on FMLA leave a few weeks later to care for Paul.  Paul died unexpectedly a week later.  Susan informed FedEx of Paul's death that same day.  She was crying when she called.  She remained on leave.  A few days later Susan asked for an additional 30 days of leave "to take care of things."  FedEx approved the leave.  FedEx management testified that Susan was often crying and seemed "very sad" during these two discussions.  Susan understood that she was approved for an additional 30 days of FMLA leave.  FedEx subsequently informed Susan that she had been separated from the company prior to the expiration of the 30-day period.          

Susan sued alleging that FedEx violated her FMLA rights by terminating her while she was on approved FMLA leave.  FedEx defended by arguing that Susan was on bereavement leave, not FMLA leave, at the time of her termination.  For purposes of summary judgment, the court disagreed with FedEx.  According to the Court:

The Court believes that Plaintiff's employer's knowledge of Plaintiff's husband's death, the fact that she was crying, and that she asked for additional time to "take care of things" could be sufficient to put her employer on notice that she was asking for FMLA leave.  If the employer had questions regarding whether Plaintiff was attempting to continue her FMLA based upon her own illness, it should have followed up with Plaintiff.

Comment:  The decision is not as far fetched as it might initially seem.  It is very clear that an employee is not entitled to FMLA leave "to care for" a covered family member once that family member passes away.  The employee would, however, be still entitled to FMLA leave due to their own serious health condition, or to care for another covered family member with a serious health condition (e.g., emotional distress resulting from the death of the original covered family member, assuming the condition meets the definition of a serious health condition). 

In Murphy, Susan requested leave for herself.  The request was sufficient to shift the burden of inquiry to the employer because FedEx knew (1) she was asking for an extension of her approved FMLA leave; (2) the extension was for a significant period of time; and (3) Susan was demonstrably upset by the death of her spouse of 22 years.  

Where an eligible employee requests leave due to a death in the family employer's should proceed with caution.  Courts and jury's are likely to be very sympathetic to the employee.  Employer's might want to think twice before jumping to the conclusion that the employee is only requesting bereavement leave outside of the protections of the FMLA.  Employer's would be well advised to make additional inquiries to determine whether the leave is FMLA-qualifying.    

Murphy v. FedEX National LTL, Inc. No. 4:07CV01247 JCH, 2008 U.S. Dist. LEXIS 79147 (E.D.Mo. Oct. 8, 2008). 

           

Doctor's Note Requesting 2 Weeks of Leave Due to "Medical Complications" Sufficient Notice Leave May Be FMLA Qualifying

In Krenzke v. Alexandria Motor Cars, Inc., No. 07-1561, 2008 U.S. App. LEXIS 17654 (4th Cir. Aug. 15, 2008), the court found that a doctor's note faxed to the employer stating, "I recommend 2 weeks of no work due to medical complications and illness" was sufficient to alert the employer of the possibility that the leave may be covered by the FMLA.  The court observed that, "[a]lthough the note was summary in nature, it was received from a medical doctor and stated that an extended leave was needed for medical reasons."  The burden of inquiry shifted to the employer to gather additional information and determine if the leave was actually covered by the FMLA.  The employer did not inquire further.  As such, the court concluded that Krenzke provided sufficient notice that she was entitled to leave under the FMLA. 

Comment: The decision adds to the long line of cases that have addressed the tipping point where the employee has provided enough, albeit incomplete, information suggesting the possibility that the FMLA may be involved to shift the burden of inquiry to the employer.  Some courts have required that the reason articulated for leave come pretty close to the criteria for one of the serious health condition definitions.  Others, like the Fourth Circuit here, have shifted the burden of inquiry based on far less specific information.  Employers, of course, need to figure out whether the standard in their Circuit is horseshoes (requiring fairly specific information) or hand grenades (requiring less employee specificity) before the burden of inquiry shifts to them.  

In the Fourth Circuit, the source of an otherwise vague leave notice, a doctor rather than an employee, would appear to lower the bar for purposes of suggesting the possibility of FMLA leave and shifting the burden of inquiry to the employer.  I say this because there are cases out there where employees have asked for lengthy periods of leave due to "illness," "sickness," and the like and courts have not shifted the burden of inquiry.   

To play it safe, employers who receive notice of the need for lengthy employee leave via doctor's notes should consider making further inquiries to determine if the FMLA may be implicated.    

The decision of the Fourth Circuit involves Title I of the FMLA.  The MSPB has applied the Title I employee notice standard to civil service employees covered by Title II.   

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.    

The MSPB has applied decisions interpreting Title I of the FMLA (like Lackman) to civil service employee's covered by Title II of the FMLA.