bullhorn.jpgEmployers, can we have a heart to heart?  I need to get something off my chest.  You see, I’ve witnessed a disturbing trend lately in the court cases I’m reading and in your FMLA practices: too many of you are not recognizing when an employee’s leave request may be covered by the FMLA.

Let me share a real life situation that illustrates my point.  

Christine Dollar supervised a bunch of truck drivers at Smithway Motor Xpress. Dollar also suffered from depression.  In March, she missed several workdays for some rather ambiguous reasons.  By June, her depression apparently worsened, and she suffered periods of anxiety and insomnia severe enough that a friend took her to the emergency room for treatment.  

Dollar called her supervisor before her shift the following day to inform her employer that she would not be reporting to work that day.  The following day, she called her supervisor again to inform him that she was seeking treatment at a mental health center and had received a doctor’s note keeping her off work for another week.  Dollar provided her employer this note, which clearly indicated she was being treated for depression.  

Two days later, however, Dollar’s supervisor informed her that she no longer would be working in her current position and that the VP of Human Resources would tell her where she would transfer when he returned from vacation — two weeks later.  Thereafter, Dollar sought several extensions of her leave of absence and provided medical documentation supporting her continued absence. When she could not return to work immediately, Dollar was terminated.

Thud.  That’s the sound of the employer smack down after a trial court later found that the employer had interfered with Dollar’s FMLA rights when it provided her no FMLA certification form and no notice of her FMLA rights following her request for leave.  Dollar v. Smithway Motor Xpress (pdf)

Insights for Employers

The Dollar case serves as a valuable reminder that we must do a better job recognizing when an employee has put us on notice that the requested absence might be covered by the FMLA.  A few reminders are worth noting:

  1. As an initial matter, when an employee with the last name “Dollar” sues you, be very, very afraid. This is not good karma.    
  2. On a more serious note, as we know (or should know), employees are not required to cite specifically to the “FMLA” as a reason for their absence; a bullhorn also is not necessary. The employee need only provide enough information to indicate that the leave of absence might be covered by the FMLA. If the employee has provided this information, the employer then has an obligation to either inquire further to determine whether the FMLA is in play or provide the employee a notice of her FMLA rights and a certification form.
  3. No. 2 immediately above surely is ambiguous.  I wish the regulations provided more guidance to employers on this point.  But when there is any doubt as to whether FMLA applies, ask questions of your employees!  I’ve shared before many of the questions you can ask your employees to help you determine whether the absence might constitute FMLA leave.  Access those questions here.
  4. Beware of employees who tell you they are in the emergency room for their own or a family member’s medical issue.  Courts differ on whether this alone is enough notice of the need for FMLA leave.  Just last month, for example, a court found in Lanier v. Univ. of Texas Sw. Med. Ctr that an employee’s text message indicating that she was in the emergency room with her father was not enough to notify the employer of the need for FMLA leave.  Lanier was a great decision for employers, but I’m afraid it gave employers a false sense of security that will result in lax FMLA compliance.  Notably, just last year, I wrote about another court that found that a similar “emergency room” notification from an employee was enough to put the employer on notice of the possible need for FMLA leave! (Lichtenstein v. University of Pittsburgh Medical Ctr.). So, how a court would handle these “emergency room” situations is as clear as mud. 
  5. Training your managers about their obligations under the FMLA is imperative.  As we see from the Dollar case, even the VP of HR could have used some FMLA training.  The cost of not training your managers in this area of the law is far more severe — among others, you risk losing a great deal of money in litigation (just ask Dollar!).  Take these obligations seriously and spend the money now to train your managers.