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