Employee calling in ‘sick’ doesn’t automatically trigger your FMLA obligations

Some employees believe all they have to do to invoke FMLA leave protection is to call in, say they’re “sick” and wait for their employer to request medical certification.

Wrong! Merely calling in sick doesn’t trigger any employer obligations under the FMLA.

To put you on notice of their need for FMLA leave, an employee doesn’t have to put his FMLA request in writing or even specifically mention “the FMLA” or “family leave.” But he does have to provide more than a statement that he’s sick and can’t come to work.

Recent case: Reginald Lee had been warned that he might be fired if his attendance problem didn’t improve. One day, after using up all his sick and vacation leave, he called in sick. He said he had injured his back changing a tire and wouldn’t be in for three days.

Lee returned on the fourth day with a doctor’s note explaining that he had been examined, but could now return to work. It said Lee’s back pain was “mild,” “constant” and “tight.” The note said nothing about treatment or medication.

Lee was fired for poor attendance. He sued, alleging he was out on FMLA leave and had officially put his employer on notice when he made the initial phone call.

The court said that wasn’t enough. It said that merely calling in doesn’t trigger an employer’s duty to ask more questions. Plus, nothing in the doctor’s note qualified Lee for FMLA leave, since it did not specify that Lee couldn’t perform his job for at least 72 hours. (Lee v. U.S. Steel, No. 11-11718, 11th Cir., 2012)

Online resource: For advice on how to correctly collect employees’ medical information under the revised FMLA rules, read “What’s up, doc? How to collect medical info under new FMLA rules.”