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Mindy Chapman, Esq., Mindy Chapman & Associates
Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law
monthly newsletter. She is highly regarded for her workplace compliance
training that “clicks and sticks,” because it is practical and
memorable. She is also the coauthor of the American Bar Association’s
bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."
The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the
workforce—from boardroom executives to managers and supervisors and to
hourly employees in union and non-union environments.
Question: Next time you have to decide if an employees’ medical condition is “serious” enough to qualify for FMLA leave, maybe you should grab your Grey’s Anatomy medical book (or maybe just watch the TV show) to brush up on your ability to diagnose. That seems to be what a court is urging in an important ruling that many have overlooked.
The FMLA requires employees to give notice to their employers about their health conditions. If the condition rises to the “serious” level cited in the FMLA, the employee is eligible for FMLA leave. But what if those hints are dropped one at a time? Are employers now supposed to add up all the employee’s symptoms, statements and absences to ultimately diagnose the situation? Yes, as the following case shows.
Case in Point: David Burnett worked for a Chicago-based property management company. He got apartments ready for rental. One day, he told his boss that he was having health problems requiring medical attention. First, he said he had a “weak bladder” when he turned down a transfer to a job that gave limited bathroom access.
A few months later, Burnett gave his boss a copy of his doctor’s order requesting blood work. He also said he had high cholesterol, a high PSA (prostate-specific antigen) and more upcoming doctor’s appointments. The boss gave him leave to attend those appointments. At a later meeting with his boss, union reps and company officials, Burnett said he’d been “feeling sick.” He compared his situation to his brother-in-law’s, who had been diagnosed with prostate cancer.
A month later, Burnett gave a different manager a request for time off to get a biopsy. Burnett’s boss never saw the request. During the following week, the boss reprimanded Burnett several times for poor performance and disruptive behavior. During a union hearing about those reprimands, Burnett commented that if he were diagnosed with cancer, he’d likely kill himself because he had no one to care for him.
Following the biopsy, Burnett delivered a doctor’s note that restricted him from heavy lifting. The next day, Burnett told his boss he felt sick and wanted to go home. The two argued and Burnett went home. The next day, Burnett was fired for insubordination. Eleven days later, he was diagnosed with cancer. He sued, alleging interference with his right to take FMLA leave. (Burnett v. LFW Inc., d.b.a The Habitat Co. 7th Cir. 2007)
How did this case end … and what lessons can be learned?A lower court tossed out Burnett’s FMLA claim, saying he didn’t give his employer sufficient notice that he had a “serious” health condition, as required to be protected under the FMLA.
But the appeals court disagreed. It welcomed the case back into the courtroom, saying that an, “employee’s notice obligation is satisfied so long as he provides information sufficient to show that he likely has an FMLA-qualifying condition.”
The court noted that Burnett’s various comments over four months—including his “weak bladder” and “feeling sick” comments, combined with his comment about his brother-in-law’s condition, his frequent medical appointments and biopsy—should have all been taken in context together to put the employer on notice of an FMLA-qualifying condition. (The court did, however, note that an employee’s “bare assertion that he is ‘sick’ is insufficient” to put an employer on FMLA notice.)
The court also allowed Burnett’s FMLA retaliation claim to move forward. It said that when Burnett asked to go home because he was feeling sick, that was a request for FMLA leave that should not have been labeled “insubordination” by the employer.
Lessons Learned … Without Going to CourtIn addition to carrying around your Grey’s Anantomy book and DVDs, maybe you should also keep a calculator in hand. Your math skills will come in handy in figuring out if an employee may be putting you on notice of an FMLA-qualifying condition.
Count up all of the employee’s comments, medical appointments, leaves of absences, doctor’s notes, biopsies and even communications about sick in-laws. Draw the line. Then total it up. That will give you the totality of the circumstances.
Remember: Employees aren’t required to say “I need FMLA leave.” In fact, they don’t event need to mention those letters ... F-M-L-A. It’s an employer’s responsibility to judge whether a person’s condition rises to the “serious” level.
Final Tip: If employees say they’re sick and want to go home, let them. At a minimum don’t fire them over it. You may have “mis-added,” and it may just be another sign of an FMLA-qualifying condition.
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