Under the FMLA, an employer's obligation to provide leave arises only after an employee gives notice that he or she needs FMLA leave. However, it is well-established that an employee need not explicitly mention the FMLA when requesting leave. Rather, an employee's notice is sufficient if it gives the employer enough information to reasonably conclude that the employee may need leave for an FMLA-qualifying reason. Determining whether an employee's request for leave meets this requirement is a difficult proposition, particularly when the employee appears to be using the request to avoid instructions or shield himself from discipline. A recent decision of the 6th Circuit Court of Appeals sheds some light on the subject, and affirms that an employee cannot avoid discharge for insubordination merely by claiming that he had a headache and needed to go home. Gipson v. Vought Aircraft Industries, Inc. (.pdf).

The Facts

Howard Gipson worked for Vought Aircraft Industries, Inc. as a plant maintenance worker. He also served as president of his local union. In late 2004, he had triple bypass heart surgery. He requested and received FMLA leave, and returned to work without incident. In October 2005, Gipson was removed from his position as union president. In January 2006, his successor removed Gipson's personal effects from the union office in the plant, placed them in the lobby outside the HR office, and asked Gipson to retrieve them. Gipson did not do so. On January 26, 2006, Gipson's supervisor, Charlie King, directed Gipson to remove his belongings from the lobby. Gipson did not comply, even after King repeated the instruction. When King ordered him to remove his belongings for a third time, Gipson stated that he began to feel unwell, and later alleged that King's behavior exacerbated his heart condition. However, he did not complain about his health or otherwise state that he needed medical attention. 

Later, Gipson went to the plant's First Aid department, where a nurse checked his blood pressure and found that it was "a little high, but within normal limits." Gipson asked the nurse for permission to go home, but was told that he needed authorization from his supervisor. Gipson did not claim that he told the nurse about any specific symptoms or mention his heart condition. 

On the way back from First Aid, Gipson told the union's safety committeeman to call King and request a medical pass, stating that he intended to use the pass to go home and get his medicine or see his doctor. He did not say what medicine he needed or what his ailment was. Gipson then returned to the maintenance department, where he told King that he was in pain and needed to go home and get his medication. King told Gipson that he could not leave "until we take care of business." King's supervisor and the plant's HR manager arrived, and again ordered Gibson to retrieve his belongings from the HR lobby. Gipson declined, stating that he had a "very bad headache." Gibson acknowledged that he was given a direct order to move his belongings and did not comply. He was terminated for insubordination. 

Gipson left the plant and drove appoximately 30 miles to his doctor's office. Once there, he did not receive immediate medical attention. Rather, he made an appointment for a date three weeks in the future. He then went home. 

The Lawsuit

Gipson filed suit in Tennessee state court alleging that Vought violated the FMLA by refusing his request for leave and terminating him in retaliation for exercising his FMLA rights. Vought removed the case to federal district court. The district court granted summary judgment for Vought. Gipson appealed. 

With respect to Gipson's claim that Vought unlawfully denied his request for FMLA leave, the Court of Appeals held that Gipson's statements to Vought management were not sufficient to place the company on notice that he required FMLA leave. The court rejected Gipson's argument that his notice was sufficient because Vought knew that he had undergone triple bypass surgery, noting that there was no evidence that Gipson had ever notified Vought of ongoing heart problems or continuing treatment for his heart condition. 

The Court of Appeals also rejected Gipson's retaliation claim, finding that Vought could not have retaliated against Gipson for exercising his FMLA rights because Gipson never gave the company adequate notice that he needed FMLA leave. Rather, the court found that Gipson's insubordination was a legitimate, non-retaliatory reason for terminating Gipson's employment, noting that "an employee may not insulate himself from a pending dismissal by opportunistically invoking the FMLA."

Insights for Employers

1. Claiming illness is not by itself sufficient notice of FMLA leave. The FMLA regulations are quite clear that an employee must do more than "call in sick" or claim illness to put the employer on notice that he or she needs leave due to a serious health condition. This case might have had a different result had Gipson stated that he needed leave to see the doctor due to his heart condition. However, because his gave no specific reason for his requests to leave work, he failed to give adequate notice under the FMLA.
2. When in doubt, ask. While this case turned out well for Vought and illustrates the limits of the FMLA, the company may have narrowly dodged a bullet here. Had Gipson provided slightly more information - or even if he later claimed that he had done so - this case could easily have come out differently. In close cases, when an employee asks for leave due to a health condition, employers should strongly consider inquiring further to determine whether or not the FMLA applies to the leave.
3. The FMLA is not a shield. All too often, employees facing discipline or termination will use laws such as the FMLA in an effort to shield themselves from the consequences of their poor performance or misconduct. Unfortunately, this puts employers in the difficult position of having to either give the employee a pass or risk a retaliation claim. However, where the grounds for discipline or termination are clear, as in this case, the FMLA will not protect the employee from the consequences of that action.