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Listen for hints about illness … they may be FMLA notice

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in FMLA Guidelines,Human Resources,Leaders & Managers,Performance Reviews

The FMLA’s notice provision requires employees, to be eligible for FMLA leave, to let their employers know that they suffer from a serious health condition. Merely telling a supervisor “I’m sick” doesn’t cross to the threshold of a legitimate FMLA notice.

But it’s important for supervisors to know that employees, on the other hand, don’t need to say something as explicit as “I need FMLA leave because I have X illness.”

It’s your responsibility to judge whether the person’s condition rises to the “serious” level, based on the information given.

As a new case shows, an employee’s series of comments about his worsening illness or upcoming medical tests can be considered FMLA notice. Teach supervisors to pay attention to such cues, and let employees know how to request FMLA leave.

Recent case: David Burnett worked as a janitor for the Habitat Company, readying apartments for rental. After about 13 years on the job, Burnett began telling his supervisor that he was having some medical difficulties.

First, Burnett said he had a weak bladder. Then, he said he had a doctor’s appointment to discuss the problem. Over the next four months, Burnett revealed that a prostate test showed the need for a biopsy. He also told his supervisor that if he had prostate cancer, he’d consider suicide.

As Burnett’s medical problem escalated, his supervisor began finding performance problems. The company fired Burnett right after his biopsy, but before his diagnosis. He sued, alleging interference with the right to take FMLA leave.

The company’s defense: Burnett never said he had a serious health condition or needed FMLA leave, so it was under no obligation to let him know how to take FMLA leave.

Not so, said the 7th Circuit Court of Appeals. Although Burnett didn’t look sick, he clearly let his supervisor know he was having medical problems. That triggered the company’s obligation to let him know how to take FMLA leave. (Burnett v. LFW d.b.a. The Habitat Company, No. 06-1013, 7th Cir., 2006)  

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