ADA & Disabilities, Leave Management, Policy, and Compliance

When ‘Casual Conversations’ Become FMLA Notice

As an employer, you might think that there’s a clear difference between taking part in casual conversations with your employees versus receiving notice of an impending FMLA leave. After all, dropping hints in the lunchroom about ailing parents, sick kids or personal health issues doesn’t qualify these days as giving official leave notification, does it?

Think again, because it could, and the ruling by the 7th U.S. Circuit Court of Appeals in Nicholson v. Pulte Homes Corp., No. 11-2238 (Aug. 9, 2012) illustrates the nuances of interpreting such notification.

Without proper documentation to support your company’s procedural leave policy, you might be surprised how quickly the line between compassionate listening and federal law compliance blur in the eyes of the court.

And even if your employee handbook spells out your leave policy in no uncertain terms with a provision on “How to Give Notice of the Need for Leave,” you’re still not necessarily in the clear. There’s legal precedent (Burnett v. LFW Inc., 7th Cir., No. 06-1013 (Dec. 26, 2006)) that a person’s medical history — with a coherent pattern and progression of symptoms, doctor visits, plus testing and results (all communicated in one form or another to a supervisor) — can be enough to put you, the employer, on FMLA notice. In some scenarios, when the need for leave is unforeseeable, there may be no advance notice and you still are on the hook for it. (See ¶270 Intermittent Leave in the Handbook.)

Moreover, because your employee can be completely ignorant of the benefits FMLA provides and still be entitled to its protections, she is not required to specifically refer to FMLA so long as she alerts you to the seriousness of the health condition. And when the need for leave concerns a family member rather than the employee herself, she just needs to indicate that leave is sought to care for that person. The obligation to designate such leave as FMLA-qualifying is placed squarely on your shoulders, not the employee’s. (See ¶250 Designating Leave in the Handbook.)

For additional information about leave and disability, see Thompson’s employment law library including the Family and Medical Leave Handbook.