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Does a ‘Casual Chat’ About Aging Parents Put You on Notice of FMLA?

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in Case In Point

fmla noticeSay you’re a manager sitting with employees at lunch and one of them casually mentions her parents are aging and in poor health. You note your folks aren’t getting any younger either. Chit-chat-chit-chat. Time to wrap it up and go back to work. But wait: Does that informal chatter officially put your company on notice that the employee’s leave to visit her sick parent is protected under the Family and Medical Leave Act (FMLA)? As one court ruled, the devil is in the details ...

Case in Point: After eight years on the job, Donna Nicholson, a sales associate for an Illinois homebuilder, was placed on a performance improvement plan (PIP) to increase her sales.

A year earlier, Nicholson’s father was diagnosed with leukemia. She had not mentioned this to her supervisor until she casually remarked one year later that he may need chemotherapy and she might need leave to take care of him.

A few months after receiving her PIP, Nicholson’s supervisor stressed the importance of sales goals. Soon after, a few customers complained that Nicholson was rude and unprofessional.

Around this time, Nicholson had a casual conversation with her supervisor about the “challenges of dealing with aging parents.” Nicholson also disclosed that her mom suffered from chronic kidney disease and she often drove her mom to the doctor’s appointments on her days off.

Nicholson’s sales remained in a slump. She was required to make four sales in 60 days, instead of the usual 30 days. She made no sales and was terminated at the end of the PIP period.

Nicholson sued, saying the employer interfered with her right to take FMLA leave. The company countered by saying Nicholson never put it on notice of her need to take FMLA leave, and she was genuinely fired for poor performance. Nicholson claimed her casual conversation with her boss was enough notice and the employer could not have missed those cues. (Nicholson v. Pulte Homes Corp., 7th Cir., 8/9/12)

Result: The court sided with the company, noting that a casual conversation in which the employee “left open” the possible need for medical care for her parents was not enough information to put a company on notice.

But take note: The court did point to another case in which the employee “mentioned over a period of time” his initial symptoms, details about his continuing doctor’s appointments and the results of medical testing. In that case, the court concluded the employer had sufficient FMLA notice because the information was about the employee himself and more detailed.

3 Lessons Learned … Without Going to Court

1. It’s all in the details. The more details an employee gives you about health issues, the more likely you will be on legal notice of FMLA rights.

2. Don’t pry. But, it’s a fine line between making illegal medical inquiries and trying to determine if an employee is putting you on notice under the FMLA.

3. Let the employee spill the beans. The more detailed the beans are, the more likely you will be responsible for connecting them to FMLA leave.

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