Watch What They Say and What They Do: The Seventh Circuit Examines What Constitutes Notice of Employee Eligibility for FMLA Leave
Employers often find that administering Family and Medical Leave Act (FMLA) policies can prove to be one of the more challenging aspects of personnel management, particularly because employees are required to place their employer on notice of only the probable basis for FMLA leave to qualify for it. Employees do not need to specifically refer to the FMLA, as long as they have alerted their employer to the seriousness of the health condition. A general reference to being “sick” is not enough, but providing specifics about more serious medical concerns is often sufficient to warn the employer that the employee may qualify for FMLA leave. In two companion cases, the Seventh Circuit considered whether employees provided sufficient notice to their respective employers of their need for FMLA leave.
In Nicholson v. Pulte Homes Corp., 690 F.3d 819 (7th Cir. 2012), the court held that casual comments made to a supervisor about a parent’s poor health did not constitute adequate notice of FMLA leave. In December 2008, Nicholson informed her supervisor that she might need time off in the first quarter of 2009 depending on the possibility that her father would need chemotherapy. In the same month, she had a casual conversation with another supervisor and other employees about the challenges of dealing with aging parents in which she alluded to her father’s illness. In April 2009, Nicholson requested one day off to attend a doctor’s appointment with her father, which she was allowed. After the appointment, she told her supervisor that her father’s condition had worsened and that he was diagnosed with stage III cancer.
During the same time period, Nicholson also mentioned to her supervisor that her mother had experienced significant weight loss and that Nicholson spent time on her days off driving her mother to medical appointments and could not stay to work after normal business hours because of her obligations to provide care for her mother. In June 2009, Nicholson advised her supervisor that she needed to take her mother to the emergency room and would not be in that day. The following day, she asked to leave early to visit her mother in the hospital. Nicholson’s mother was ultimately diagnosed with kidney disease, but Nicholson did not provide her supervisors with those details.
With respect to her father’s condition, the court held that Nicholson had alerted her employer of the seriousness of his condition—stage III cancer—but did not convey that she needed time off to care for him. She had simply indicated that she might need time off in the future if her father needed chemotherapy, leaving the issue open-ended. Although she later requested, and was granted, a single day off to attend a doctor’s appointment with him, she did not indicate any additional need for time off. The court determined that her communications with her supervisors about the need to care for her father were too indefinite to put her employer on notice that she might qualify for FMLA leave.
With respect to her mother’s condition, the court determined that (i) Nicholson had never described the seriousness of her mother’s condition to her employer, and (ii) her communications that she drove her mother to medical appointments on her days off and could not work outside her normal business hours because of her responsibilities to care for her mother were not enough to put her employer on notice that she would need time off work.
However, the Seventh Circuit came to a different conclusion in Pagel v. TIN Inc., 2012 U.S. App. LEXIS 16548 (7th Cir. 2012), a case involving the employer’s knowledge of an employee’s own health condition. In the summer of 2006, Pagel experienced chest pain and labored breathing, which prompted him to visit two physicians. During his second appointment, he was ordered to undergo a two-day stress test that revealed a blockage in a portion of his heart. Pagel was ultimately admitted to the hospital for an angioplasty and stent placement, released the following day, and advised to rest for several days. He returned to the hospital the following week for additional tests and then returned to work. His supervisor admitted that he was aware of Pagel’s chest pain and that Pagel was admitted to the hospital. When it came to the employee’s own health condition, the court concluded, “it is difficult for us to imagine a scenario where Pagel’s notice of hospitalization did not include an implicit demand for leave.”
These two cases highlight a company’s obligations to evaluate an employee’s eligibility for FMLA leave after learning about a serious health condition of either the employee or the employee’s family member. In Nicholson, the court concluded that because the leave was needed to care for a family member, there is an onus on the employee to advise her employer that she would need to take time off work to act as a caregiver. On the other hand, in Pagel, the court held that where the employee requires hospitalization for his or her own medical condition, notice of hospitalization is sufficient to warn the employer of the employee’s eligibility for FMLA leave. In light of the court’s analysis in these two decisions, employers should ensure that their supervisors are trained (or retrained) to offer information on FMLA leave to employees who reveal either the employee’s or a family member’s serious medical condition and that employees are not required to refer specifically to the FMLA to qualify for leave under the law.