Ask the Expert, Leave Management, Policy, and Compliance, Q&A

Ask the Expert: FMLA for Depressed Employee Who Hasn’t Requested It?

An employee has been with the company for almost 2 years and is always on time and present. However, they have recently stopped showing up for their scheduled shifts. We learned that the employee has fallen into a deep depression which is restricting the individual from having contact not only with our company but also family members. FMLA would be appropriate (due to the mental illness) but the depressed employee has not contacted us about this issue. Where does our liability stand with putting the individual on leave?

Thank you for your inquiry regarding an employee who may be entitled to, but has not requested, FMLA leave.

Under the FMLA, when the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave. Notice may be given by the employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally.

If the associate in your inquiry or his/her spokesperson has not provided notice of the need for leave, the employer may delay or deny FMLA leave. Some courts have adopted a “constructive notice” theory under which clear abnormalities in an employee’s behavior may constitute constructive notice of a serious health condition. However, the theory appears to be limited to courts in the 7th Circuit, whose decisions apply to employers in Illinois, Indiana, and Wisconsin.

It’s also important to note that major depression may constitute a disability under the federal Americans with Disabilities Act (ADA) for which leave may be a reasonable accommodation.  According to EEOC guidance, the individual with a disability generally must inform the employer that an accommodation is needed.

However, the guidance adds that “an employer should initiate the reasonable accommodation interactive process without being asked if the employer: (1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. If the individual with a disability states that s/he does not need a reasonable accommodation, the employer will have fulfilled its obligation.”

Based on the information provided in your inquiry, consultation with legal counsel is recommended to determine whether the employer is obligated to provide leave for the employee.