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Don’t be an FMLA mind reader; demand notice

Workers must give enough details to trigger 'notice' of FMLA need

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in FMLA Guidelines,Human Resources,Leaders & Managers,Management Training

Employees may think that just calling in sick is enough to put their employers on notice that they need FMLA leave. That’s simply not the case.

Employees have an obligation to provide enough information about the underlying reason for the absence to trigger the possibility that the employee has a serious health condition.

It’s not enough that the employer knows the employee has had health problems in the past—even if the employee is acting unusually or exhibiting signs of mental or psychological problems.

Until recently, at least one federal appeals court had told employers they had to consider an employee’s unusual behavior as “constructive notice” of his or her need for FMLA leave (based on the idea that the employee was incapable of speaking up).

Now, however, the U.S. Department of Labor (DOL) has eliminated the regulation on which the court relied. Originally, that controversial regulation said workers had to give notice within two working days of learning of the need for leave, “except in extraordinary circumstances where such notice is not feasible.”

Now the new FMLA regulations say employees must provide notice of their unforeseen leave “within the time prescribed by the employer’s usual and customary notice requirements.”

As the following case shows, this means employers aren’t obligated to guess about an employee’s need for FMLA leave based on behavior.

Recent case: Talmadge Scobey was demoted because of four unexcused absences due to intoxication. One time, he called in and spoke with slurred speech, telling a supervisor that he was “f***ed up.” The supervisor marked the absences as unexcused and demoted Scobey under the company’s attendance policies.

Eventually, Scobey got alcohol treatment, using leave time covered by the FMLA. Still, he sued, alleging that he shouldn’t have been demoted for the earlier absences.

Scobey claimed his behavior should have counted as “constructive notice” of his need for FMLA leave, thus triggering the company’s obligation to tell him about FMLA leave.

The court disagreed, given the new DOL regulation.

Plus, absences due to a drinking binge don’t qualify for FMLA leave because being intoxicated isn’t a serious health condition—even if alcoholism and addiction treatment is covered by the FMLA. (Scobey v. Nucor Steel, No. 08-1192, 8th Cir., 2009)

Final note: Remember that employees don’t have to specifically request “FMLA leave” or even mention the law at all. However, as the new regulations clarify, employees must provide enough details about the reason for the requested leave. Then it’s up to you to determine whether that reason qualifies as a “serious condition” under the FMLA.

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