Mention of depression enough for FMLA notice
Too often, court cases involve, at least in part, an employer’s failure to recognize when an employee has put it on notice of the need for FMLA leave. While some employers still cling to requiring an employee to actually mention the “FMLA,” proper notice doesn’t require any magic words; it merely needs to make the employer aware that the employee needs potentially FMLA-qualifying leave. Mentioning a potential serious health condition and the need for time off is enough. From there, the responsibility falls on the employer to inquire further about whether the employee is seeking FMLA leave.
Case in point
Harold had depression, and his supervisor knew about it. After completing a high-stress project that entailed strange and long working hours, his attendance began to slip. He began showing up to work late (very late) and not calling in on time. After a while, Harold’s supervisor developed a plan to have Harold get to work by 10 a.m., and to call in if he couldn’t meet that time, in part to help with his depression. Harold did not follow the plan. Nor did he follow a revised plan made a few days later.
Three weeks went by, and Harold was still struggling. He met with his supervisors who told him he was referred to an EAP. On the day of his EAP appointment, Harold asked for four weeks of leave, But Harold’s supervisor insisted that he would need to meet with EAP before his leave request would be approved.
Harold kept the EAP appointment, postponed the leave, but continued to have attendance issues. A week later, Harold renewed his leave request, which was approved. Harold continued working, but filed a claim, arguing, in part, that the employer interfered with his FMLA rights, revolving around whether his disclosure of his depression and subsequent request for leave was enough to put the employer on notice of the need for FMLA leave.
The employer tried to argue that Harold couldn’t show that his depression was a serious health condition. The court, however, pointed out that the employer didn’t even ask whether Harold’s depression was a serious health condition, so it could not argue a point on the basis of its own failure to act.
Here is another case in which a supervisor acted in such a way that put the employer at risk because he did not recognize a notice of the need for FMLA leave. When training supervisors and managers about the FMLA, spending some focus on this one aspect of the law can help your company avert some FMLA claims.
Hannah P., v. Daniel Coats et al., 4th Circuit Court of Appeals, No. 17-1943, February 19, 2019
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