FMLA notice: Rely on what you know–not policy

A good sick leave policy includes rules governing how employees are supposed to let their employers know that they’re ill. Employees generally have to follow those rules or face discipline.

But there are circumstances under which employees may be excused from following the rules. One of those exceptions: when the employer has direct notice that the employee is ill and may need FMLA leave.

Recent case: Mitchell Harvey tallied 11 strikes toward a maximum 12 under Waste Management’s unexcused absence policy. The next time he had an unexcused absence, he would lose his job.

One day, Harvey showed up for work but told his supervisor he did not feel well. The supervisor saw that he was having trouble standing up and suggested that he go home. Harvey left and went to the hospital. Later, his girlfriend called the company to report he had been hospitalized.

He was diagnosed with Addison’s disease, which causes low blood pressure, nausea and vomiting. Addison’s disease can be controlled by medication, but Harvey clearly wasn’t able to work until his condition stabilized.

Waste Management fired him, ostensibly for not calling in per company policy and for having an unexcused absence.

Harvey sued, alleging that he had given his employer notice that he had a serious health condition and needed FMLA leave.

The court agreed with Harvey. Because his supervisor saw his condition and sent him home, there was no question that Harvey had given his employer sufficient notice that he might need FMLA leave. The court also said that under the circumstances, it did not matter that Harvey did not follow the letter of the company’s call-in process. Waste Management knew he was seriously ill, and firing him on a technicality wasn’t proper. (Harvey v. Waste Management of Illinois, No. 08-CV-6828, ND IL, 2010)