Clairvoyance not required to ID need for FMLA

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in Firing,FMLA Guidelines,Human Resources

Under the FMLA regulations, if an employee is incapacitated, someone else can notify the employer, whose FMLA obligations are then triggered.

But that doesn’t mean that a co-worker merely telling a supervisor that the employee is “sick” works as notification. Employers are entitled to better notice than that.

Recent case: Tanya took frequent leave—FMLA and otherwise—for various problems, including mental health issues. She even had the company call-in number programmed into her phone and had called in sick more than 100 times.

Then Tanya, who carpooled with another employee, wouldn’t get out of bed one morning. The co-worker continued on to work and informed Tanya’s supervisor that Tanya was “sick” even though Tanya had merely told her she was too depressed to go to work.

Tanya neither called in nor showed up for work for the next 30 days.

Sometime during that time off, a new supervisor took over. He ­wondered where Tanya was and real­­ized she had been a “no-call, no show” employee for more than three days. That was a dis­­­charge­­able offense, so he fired her.

A few days later, Tanya showed up ready to work. She brought along her doctor’s medical clearance and an FMLA request form. The company said it was too late.

She sued, arguing that ­having a co-worker report her ­ab­­sence was enough to trigger FMLA obligations. She said her em­­ployer should have contacted her. If it had, Tanya said it would have been clear she couldn’t work due to depression.

The court tossed out her case. It reasoned that the employer hadn’t been fairly notified that Tanya might need FMLA leave and was within its rights to fire her. (Bosley v. Cargill Meat Solutions, No. 12-1290, 8th Cir., 2013)

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