Don’t take malingering employee’s bait: Calling in sick shouldn’t trigger FMLA query

Some employees believe all they have to do to invoke FMLA leave protection is call in sick and wait for their employer to request medical certification. Wrong!

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

Recent case: Reginald Lee had a poor attendance record and had been warned that he might be fired if the 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 the next three days.

Lee returned on the fourth day with a doctor’s note explaining that he had been seen in the office, but could now return to work. The note stated that 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 notified his employer when he initially called to report the tire-changing incident.

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)

Final note: Employees don’t have to put their FMLA request in writing or even specifically mention the FMLA. But they do have to provide more than a statement that they are sick and can’t come to work.