A Capehart Scatchard Blog

Does My Employee Have to Tell Me He has a Condition Triggering FMLA?

By on May 2, 2017 in FMLA with 1 Comment

The short answer is “NO.”  A recent Federal District Court decision suggests that employers are cautioned to “pay attention to” and ask questions about any mention by an employee of a serious health condition before they make the decision to take any negative employment action (firing, demoting, suspending, etc.)

The Result:

A Federal Court in New Jersey (Van Allen v. Print Art, Inc., 2017 U.S. Dist. LEXIS 55019 (D.N.J. April 11, 2017)) refused to rule that the employer did not have sufficient notice of a potential serious health condition protected under the Family and Medical Leave Act and instead, sent the notice issue to a jury to decide even though the employee’s complaints were vague and inconsistent.

Why is this Something for Employers to “Pay Attention To?”

This is important because (a) like many employers, Print Art, Inc. had a clear discipline policy for excessive unscheduled absences; (b) Mr. Van Allen’s communications to the employer were inconsistent and unclear (e.g., “My son has off…for the MLK holiday…I’m going to take the day….I had a family emergency last night and got no sleep…I broke out in rashes all over my arms, eyes, neck….[which] caused me to lose sleep”);(c) the employer, under its excessive absenteeism  policy, terminated Mr. Van Allen after it had notice of these issues; and (d) while the Court agreed that Van Allen’s complaints were vague, it refused to rule in the employer’s favor as a matter of law.

What’s an Employer to Do When the Employee’s Condition is Unclear?

 The short answer: obtain more information before taking action.  In Van Allen, the Court cited the FMLA and held that while employees must provide “sufficient information for an employer to reasonably determine whether the FMLA may apply…..this is not a stringent standard.”

Rather, “where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee…to ascertain whether leave is potentially FMLA qualifying.” As a result, even though the Court indicated that Van Allen’s complaints were vague and sometimes not suggestive of any request for FMLA leave, the Court concluded that the interpretation of “all of the communications” (including those about the rash) might lead a reasonable factfinder to conclude that the employer had sufficient notice of an FMLA-qualifying condition.

What’s the “Take-a-Way” Here?

When an employee makes any complaint about a health condition which might result in prolonged or intermittent absences from work or continuing medical treatment, engage in a dialogue with the employee to attempt to determine whether their absences may be considered to be protected leave under the Family and Medical Leave Act. Once that information is gathered, take appropriate action (medical certifications, etc.) to either grant or deny leave under the FMLA. And, as always, and because each and every employee’s situation is unique, if you have any questions about how to address the issue or whether the employee might be requesting or entitled to an accommodation under the Americans with Disabilities Act, consult your labor and employment attorney as soon as possible.

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Carmen Saginario Jr., Esq.

About the Author

About the Author:

Carmen Saginario Jr., Esq. is Co-Chair of Capehart Scatchard’s Labor & Employment Group. Mr. Saginario focuses his practice on employment litigation and counseling. He regularly counsels clients on litigation avoidance, personnel policies and procedures including those associated with the Americans with Disabilities Act, Family and Medical Leave Act and Fair Labor Standards Act, employment discipline, layoffs and other terminations. Mr. Saginario directs and participates in internal investigations involving claims of harassment, policy violations, ethics and other employment issues. He also appears on behalf of private and public sector clients before the judiciary as well as State and Federal administrative agencies (EEOC, N.J. Division on Civil Rights, etc.). Mr. Saginario is also experienced in representing clients before arbitrators and mediators. He has negotiated numerous public collective negotiations agreements (e.g., law enforcement, public works, etc.). Mr. Saginario has been certified by the National Football League Players Association (NFLPA) as a Contract Advisor (player agent).

Mr. Saginario also regularly represents clients in administrative and complex civil litigation matters and also supervises Capehart Scatchard’s Corporate Compliance Group which counsels and assists public and private sector entities on establishing and implementing legal and ethics compliance programs.

Mr. Saginario serves as counsel for governmental and other entities (including counties, municipalities, school boards, and fire districts) and individuals with respect to laws governing public entities, as well as educational, procurement, environmental, transportation, and public safety issues.

Mr. Saginario served as a Deputy Attorney General for the State of New Jersey and Assistant Counsel to Governor Thomas H. Kean, has served as Vice Chair and Director of Administration for the Cinnaminson Sewerage Authority, and Vice Chair and Treasurer of the New Jersey Health Care Facilities Financing Authority.

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There is 1 Brilliant Comment

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  1. Avatar Marla Jane says:

    What if you never missed a day of work and you ask your employer about your need to apply for temporary disability and they fire you the same day Of your request…. You’re not covered under fmla but you might be covered under the ada. Could that also be a risky impulsive move to make on the part of the employer?

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