FMLA notice — employers must recognize and honor employee leave requests

Posted February 3, 2023

COVID continues to cast a long shadow, including risks related to an employee’s leave rights under the Family and Medical Leave Act (FMLA). This employer learned that the hard way.

Background

Back in March 2020, when the pandemic was beginning to rear its head, a small Midwest employer asked pre-assigned teams of employees to work from home for one day to see how they could work remotely. Polina was one of the employees scheduled to work from home the following Wednesday, March 18.

Polina discussed her concerns with her employer about COVID exposure and asked about working from home on Monday, March 16 and Tuesday, March 17. She was also worried about her son’s heightened vulnerability to contracting COVID because of his earlier hospitalization with Respiratory Syncytial Virus (RSV). Aside from working remotely, her other option was to take paid time off (PTO) on those two days.

Employee requests time off

Polina’s request went to Geoffrey, the company’s owner, who, on Monday morning, denied the request. She then contacted HR to request PTO for those two days, which was approved by the end of the day.

The next day, Tuesday, Marc, Polina’s supervisor called to ask if she planned on returning to the office on Thursday, March 19. She said she was, but still was concerned about her son, who had developed COVID symptoms.

That Thursday, COVID cases skyrocketed and Polina’s son’s condition did not improved. She called HR about it and offered to take unpaid leave to stay out of the office. HR did not address the leave request, but offered Polina the option to work from home the rest of the week. Polina accepted that offer and forwarded the HR-related email to Marc. Polina worked with Marc as usual throughout the day, just from her home.

Employee gets fired and sues

By the end of the day, however, HR emailed Polina a termination letter citing her failure to come into work that day. She sued, arguing that the termination violated her FMLA rights.

In court, the employer argued that Polina did not provide notice of the need for leave, and that her son had only a minor cold.

While the district court ruled in favor of the employer, the Appeals Court found for the employee.

The Appeals Court pointed out that the employer was aware of Polina’s leave request based on its response: It offered an alternative accommodation to work from home for two days.

The employer also had notice that Polina sought leave to care for her son who had recently:

• Been hospitalized with RSV,
• Suffered continuing symptoms from that condition, and
• Contracted a potential case of COVID.

This knowledge gave rise to a duty for the employer to, at minimum, engage in the communication required by the FMLA. The employer neither sought to clarify Polina’s request nor did it attempt to obtain an FMLA certification to determine if her son had a serious health condition as defined under the FMLA. Instead, the employer fired her.

Key takeaways for employers

FMLA leave protections begin when an employee puts their employer on notice of the need for leave. That notice can come in various forms.

As the Appeals Court pointed out in this case, when an employer has sufficient notice of an employee’s potential FMLA leave rights, the employer’s obligations kick in. The employer may not interfere with an employee’s attempt to obtain FMLA leave, even if the leave ultimately would not have qualified for FMLA protections.

Milman v. Fieger & Fieger, P.C., Sixth Circuit Court of Appeals, No. 21-2685, January 25, 2023.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.