Often enough, HR professionals tell me that they have a difficult time recognizing when an employee has provided adequate notice of the need for leave under the Family and Medical Leave Act. A recent court case reminds us that: 1) the threshold for requesting leave is not that high; and 2) employers have an obligation to ask questions to determine whether FMLA leave may be at issue.
In Lichtenstein v. University of Pittsburgh Medical Center, the plaintiff, Jamie Lichtenstein was employed as a psychiatric technician. She appears to have been better known as an employee with an awful attendance record. In the three months leading up to her termination, she was absent twice, tardy six times and switched shifts constantly. This pattern largely is irrelevant to this discussion, however. (I just needed to add a cynical thought to suggest that the employer isn’t entirely to blame for everything that follows.) Interestingly, as Lichtenstein skated on thin ice for attendance issues, she called her supervisor prior to a scheduled shift and shared the following:
Currently in the emergency room . . . my mother had been brought into the hospital via ambulance, and I am unable to work today.
The supervisor taking the call simply noted in the attendance log, “sick mom.” Four days later, the Medical Center terminated Lichtenstein.
Notably, the Court found that, by notifying the Medical Center that her mother had been taken to the emergency room, Lichtenstein did not provide enough information for her employer to conclude that she needed leave to care for her mother due to a serious health condition. The analysis, however, did not end there. The Court held that the employee had given the employer enough information to conclude that the FMLA may be in play. As a result, the Medical Center had an obligation to inquire further to determine whether FMLA leave was necessary. Because it did not, and shortly thereafter terminated the employee, it raised an inference that the employer took the action so as to interfere with Lichtenstein’s FMLA rights. Lichtenstein v. Univ. of Pittsburgh Medical Center (pdf)
Insights for Employers
The Lichtenstein case follows a growing line of cases that seems to put the onus on employers to ask the questions necessary to determine whether the FMLA is applicable. The lesson here? Stay in touch, ask questions (especially when the request is vague or ambiguous) and insist that the employee maintain contact with you (pursuant to your call-in policies) to communicate the timing and duration of his or her absence. Keep in mind: employees are not required to specifically state “FMLA” as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play, and to inquire further if there is any ambiguity in the leave request. When there is doubt, ask the questions. In doing so, you likely have decreased your liability.
Editorial comment: Who was the real killer was here? The supervisor who took the call from Lichtenstein and who later wrote in the attendance log, “sick mom”! Even the most skilled HR professional or attorney is unlikely to read this entry and conclude it constitutes an FMLA event. Time and again, the supervisor taking the call from the employee creates the greatest risk of liability for the employer. A gentle reminder — whoever is responsible for taking the phone calls must be trained and well versed in FMLA administration. In this case, that simple oversight may have cost the employer hundreds of thousands of dollars in legal fees and a potential judgment.