In his Expert Commentary on Notice in Unforeseen Leave Cases, Darrell VanDeusen, author of the LexisNexis treatise on the Family and Medical Leave Act, reviews the approach that the Seventh Circuit is taking in addressing notice issues. Following are excerpts from the commentary:

 

The amount and type of medical information an employee must give her employer to be protected under the Family and Medical Leave Act (FMLA) continues to be a “hot topic” in unscheduled intermittent leave cases. The Seventh Circuit has taken the lead in this area, and has issued a number of well reasoned decisions over the past few years that adhere to the Act’s mandate to balance the needs of workplace and family. The court continued its analysis of this developing area of the law in Burnett v. LFW Inc., d/b/a The Habitat Co., and in Stevenson v. Hyre Electric Co. In both cases, the court reversed a district court’s entry of summary judgment for the employer in what it called a “close case” because, it held, facts suggested that the employees had provided sufficient notice in light of the surrounding circumstances to put the company on notice they were invoking the FMLA’s protection. Burnett makes good sense, but Stevenson presents a troubling application of the court’s “constructive notice” decision in Byrne v. Avon Prods., Inc.

 

The Ground Rules for Notice and Unscheduled Intermittent Leave. The FMLA, of course, protects both an employee’s scheduled leave and unplanned absences. Notice issues rarely come up when leave is scheduled, since, for example, an employee typically will tell her employer in advance of planned surgery. Achieving the balance between work place and family becomes more difficult when the absence is unplanned: the employee or a family member is rushed to the hospital with a heart attack and does not come to work. Even more difficult, however, is the situation where the employee wants to take unscheduled leave on an occasional unplanned basis. How much notice, and what type of information, must the employee provide to ensure that her absence is FMLA protected? The outliers are pretty clear: an employee who says nothing or says only “I’m sick” has not provided sufficient notice, while the employee who has her physician provide detailed medical information establishing a serious health condition has invoked the FMLA. But there is a lot of gray area in between.

 

 

Practical Pointers for the Practitioner. What is the lesson to be taken from these decisions? For employees, it reaffirms the need to be forthcoming about medical concerns that could become a serious health condition. For employers, it brings home the need to make sure that supervisors, managers and human resource employees are trained to recognize a request for leave that involves family or medical issues as at least potentially invoking FMLA rights, and to proceed with the notice and certification requirements imposed by the Regulations.

 

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