Don’t Just Assume! Follow Up With Employees Who May Need FMLA Leave

December 21, 2015

What happens when an employee tells you about a medical condition that could qualify for Family and Medical Leave Act (FMLA) leave? What happens if you tell him to apply for FMLA leave but he doesn’t? A recent decision from the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) shows that if you have knowledge that an employee is missing work to care for himself or a family member and the leave would arguably be covered under the FMLA, you have a responsibility to follow up and determine whether the employee needs FMLA leave.

Just the Facts

Terrence Preddie worked as a fifth-grade teacher for Bartholomew Consolidated School Corporation (BCSC) from 2009 to 2011. Preddie is diabetic, and his son suffers from sickle cell anemia. His son’s condition occasionally requires unpredictable hospital stays. After one hospital stay, Preddie’s principal, Diane Clancy, became concerned about his absences and told him that he had missed enough school days. Preddie explained that his son’s condition caused him “great pain” and that he had to get his son to the hospital right away when an attack occurred. Preddie wanted “to know that [he had] the support of the faculty and staff” at the school.

After Preddie used all of his paid sick and personal days, Clancy recommended he apply for FMLA leave. She told him he needed to “make a written application for [FMLA] leave” and gave him the name of the person who would handle his application. Even though he continued to take time off for his own medical condition and to care for his son, he never formally requested FMLA leave, filled out an application, or contacted the employee.

When Clancy reviewed Preddie’s performance in the spring of 2011, she determined that he “need[ed] improvement” across the board and recommended that the school board not renew his contract. The school board agreed and voted not to renew his contract. About a year later, Preddie filed a lawsuit against BCSC for a number  of violations of federal employment laws, including interference and retaliation under the FMLA. A federal district court in southern Indiana dismissed his claims, and he appealed.

Court’s Ruling

The 7th Circuit agreed with the district court’s decision to dismiss all of Preddie’s claims except for his FMLA interference and retaliation claims. According to the 7th Circuit, those claims can go to trial. There were two key issues: (1) whether Preddie put BCSC on notice that he needed FMLA leave and (2) whether BCSC interfered with his right to take leave.

Notice. Under the FMLA, “notice” can be a bit complicated. The court of appeals explained that “an employee need not expressly mention the FMLA in his leave request or otherwise invoke any of its provisions.” That means an employee gives notice to his employer when he “provides the employer with enough information to put the employer on notice that FMLA-qualifying leave is needed.”

The court of appeals ruled that Preddie provided notice when he explained to Clancy that his son required unplanned trips to the hospital to treat his sickle cell anemia. Also, BCSC was aware that Preddie was diabetic and that he occasionally needed treatment himself. Clancy tried to put Preddie in touch with the right person so he could formally apply for FMLA leave. However, no one followed up with him. The fact that Clancy pointed out the application to Preddie showed that she was aware that he might need FMLA leave. The court of appeals explained: “The burden is . . . on the employer to ‘inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought . . . and obtain the necessary details of the leave to be taken.’”

Interference. Preddie claimed that BCSC interfered with his FMLA rights because Clancy discouraged him from taking time off to care for his son and his absences were a factor in the school board’s decision not to renew his contract. BCSC argued that it did not know he was taking FMLA leave because he never filled out an application for leave, even though he was told to do so. The court of appeals explained that interference with FMLA leave means more than simply denying leave. An employer can interfere with an employee’s FMLA rights by discouraging him from taking leave and considering his use of FMLA leave “as a negative factor in employment actions.” Clancy told Preddie, “You’ve missed a lot of school for yourself. You can’t take off.” A jury could view a statement as discouraging Preddie from taking FMLA leave. Also, the school board’s reasons for not renewing Preddie’s contract could be considered interference because they were “tied logically and practically to [his] absences.” Preddie v. Bartholomew Consolidated School Corp., No. 14-3125 (7th Cir., Aug. 24, 2015).

Bottom Line

Be sure to follow up on potential requests for FMLA leave. Do not assume employees will tell you they need to take FMLA leave. The FMLA puts the onus on employers to follow up with employees and find out whether leave is needed. If leave is needed, get the facts and details about it. Chances are, the employee isn’t thinking about getting the right paperwork done. Rather, he is probably thinking out what he needs to do for himself or his family member. Being proactive when you find out an employee may need FMLA leave can save a lot of headaches later on.

This article, slightly modified to note recent updates, was featured in the November 2015 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.