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Employees Have a Duty to Reveal Serious Health Conditions under FMLA

by Chris LaRose

In a decision issued August 25, the Eighth U.S. Circuit Court of Appeals ruled that the trial court properly threw out an employee’s Family and Medical Leave Act (FMLA) case. The lawsuit stemmed from the employee’s demotion after four unexcused absences. The employee argued that his absences should have been considered FMLA leave because he suffers from alcoholism and depression, which he later received treatment for. The trial court determined that the employee failed to provide adequate and timely notice that his absences might be FMLA-qualifying, and the Eighth Circuit upheld the decision. Read on to find out more about the duty employees have to provide adequate notice sufficient to trigger the FMLA’s protections.

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Facts
Talmadge Scobey worked as a “ladle man” at a steel mill for Nucor Steel. It was a demanding but desirable position, paying between $80,000 and $90,000 per year and enabling Scobey to work a rotating shift.

Nucor’s attendance policy stated that employees with four unexcused absences may be terminated after the fourth absence. From April 10 through 13, 2005, Scobey missed four consecutive days of work. He claimed the absences were due to depression and alcoholism triggered by the death of his ex-wife’s father. During his absence, he spoke with various Nucor employees, each of whom testified that Scobey was intoxicated, acted erratically, and claimed to be having a nervous breakdown.

On April 14, Scobey claimed that he didn’t remember the previous four days and requested Nucor’s assistance for treatment of alcoholism and depression. Nucor first referred him to an inpatient treatment facility. Later, he was sent to an outpatient facility for extended treatment for alcoholism, depression, posttraumatic stress disorder, hypertension, and job/family impairment.

Despite Scobey’s documented mental health problems, Nucor classified the four April absences as unexcused. Under company policy, Scobey was subject to termination for his absences. Instead, when he returned to work on May 20, he was suspended for three days and demoted to an entry-level position in the shipping department. The new position paid between 50 and 60 percent of his previous compensation and required that he work the night shift.

Scobey’s suit claimed that the demotion was an attempt by Nucor to force him to quit. He also claimed that he provided Nucor with sufficient notice that he had a serious health condition requiring FMLA leave during the four unexcused April absences. The district court dismissed the case in Nucor’s favor, and Scobey appealed to the Eighth Circuit.

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Eighth Circuit’s analysis
The FMLA requires covered employers to provide employees with up to 12 weeks of unpaid leave during a 12-month period for “a serious health condition that makes an employee unable to perform the functions” of his position.

To properly state a claim for interference under the FMLA, the employee must have provided the employer with notice of his need to take FMLA leave. Although the notice need not mention the Act by name, the employee must indicate both the need and reason for leave. Further, he must make the employer aware that the absence is the result of a serious health condition (i.e., an unusual and privileged absence, as opposed to an ordinary “sick-day” or even malingering). After adequate notice has been given, the employer is expected to obtain any necessary additional information through informal means to assess the applicability of the FMLA.

Information provided to Nucor. On April 11, Scobey spoke with a supervisor and stated that he had suffered a nervous breakdown. Because Scobey sounded intoxicated, the supervisor believed he was making excuses to avoid work.

On April 13, Scobey missed his fourth consecutive day and left a message with HR stating that he would call the following day. On April 14, he called Nucor and requested help because he couldn’t remember the previous four days.

Scobey’s argument. Scobey argued that his erratic behavior and irrational statements during the four-day period provided Nucor with adequate notice of his depression and alcoholism. The notice, in turn, triggered Nucor’s obligation under the FMLA to inquire further. Scobey contended that his comments to Nucor employees while in an inebriated state should have been interpreted as a manifestation of his underlying depression.

The appeals court noted that an employee has an affirmative duty to notify his employer of any need for leave that might by FMLA-qualifying. Therefore, it declined to adopt Scobey’s argument that his erratic behavior alone should have provided Nucor with sufficient notice of his possible depression and prompted the company to investigate further.

Only after the employee has provided actual notice of a serious health condition does the employer have a duty to inquire further. Scobey didn’t indicate that he was suffering from depression. Further, when considered in the context of his previous unexcused absences, his drunken behavior and shifting explanations for missing work, his actions were inadequate to apprise Nucor of any possible serious health condition subject to coverage under the FMLA.

The court also addressed the issue of Scobey’s apparent intoxication during the absences. While absences for the treatment of alcoholism are protected under the Act, absences caused by the use of alcohol are not. Although Scobey received treatment for alcoholism after the fact, the unexcused absences at issue were the direct result of drunkenness, not treatment. Further, there was no evidence that Nucor had any previous knowledge of his alcohol problem.

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Dissenting opinion
The dissenting judge believed that Scobey may have given Nucor adequate of notice of his severe depression. He noted that Scobey’s comments that he was having a nervous breakdown and that “he had some issues” led some Nucor employees to express concern over his mental state. Those statements and Nucor’s reaction to them would have, in the dissenting judge’s opinion, created a factual issue for the jury to decide regarding whether Scobey’s absences may have been the result of a serious health condition entitling him to FMLA protection. Scobey v. Nucor Steel-Arkansas, U.S. App. (8th Cir., Aug. 25, 2009) (No. 08-1192).

Lessons for employers
There are some important lessons to take from this case.

  • Although an employee need not mention the FMLA by name, he has an affirmative duty to put you on notice of a serious health condition. The bottom line is that you must be given enough information to distinguish FMLA-type leave from other absences, such as sick leave.
  • The U.S. Department of Labor (DOL) has recently put even more stringent notice requirements in place for an employee seeking FMLA leave. Amended regulation 825.303(b) states that the employee must specifically reference either the qualifying reason for leave (e.g., depression or pregnancy) or the need for FMLA leave.
  • Although treatment for alcoholism is a qualifying reason to take FMLA leave, absences caused by the use of alcohol are not protected.
  • If an employee mentions a serious health condition by name (even without mentioning the FMLA), you have a duty to investigate the claim to determine if he is entitled to leave under the Act.