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What every employer needs to know about FMLA leave:
What is an Employers' Obligation to Designate Requested Leave as FMLA Leave, Even When the Employee Does Not Request it?

By: Laurie Meyers, Esq.

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Employers who do not understand the notice and leave designation requirements of the Family Medical Leave Act (FMLA) risk potential exposure to litigation and penalties under the Act. Every employer must know how much information it must request when an employee fails to provide sufficient information before taking or requesting a leave of absence. It may seem that the rights and obligations under the FMLA continue to expand. However, understanding the obligations of the employer and the rights of employees under the FMLA is an achievable goal.

This article is designed to assist employers in understanding their obligations under FMLA when an employee does not specifically request FMLA leave but asks to take a leave of absence. What questions may you ask? How far into the personal life of an employee may you look? Are you afforded any protection under the FMLA for such an inquiry?

Covered Employers and Eligible Employees. Generally, an employer with 50 or more employees within a 75-mile radius of the location where an employee is based is subject to the FMLA. An eligible employee is one who has worked for that employer for at least 12 months and who has worked at least 1,250 hours in the past 12 months. Under FMLA, employers must provide 12 weeks of unpaid leave to any eligible employee who, generally 1) suffers from a serious health condition, 2) wishes to care for a relative with a serious health condition, or 3) wishes to care for their newborn child or newly adopted child. During the leave, an employer must provide group health plan benefits as it did prior to the leave and cannot discriminate against or refuse to reinstate an employee who takes valid leave.

Notice and Designation. Covered employers must post notice of "Your Rights Under the Family and Medical Leave Act of 1993" in a prominent place in the workplace. In addition, employers must have a procedure in place for:
  • notifying employees that leave is being approved;
  • notifying employees that leave is being designated as FMLA leave;
  • notifying employees of their status, rights and obligations; and
  • notifying employees if leave is being denied.

Employees are required to give at least 30 days notice of their intended leave, if foreseeable. In requesting FMLA leave, an employee need not mention the FMLA by name in order to invoke its protections; the employee need only make the employer aware that leave is required.

The notice and designation requirements have been the subject of much confusion and litigation.

What is Sufficient Notice? It has been argued that an employee calling in sick is enough to activate an employer's obligations under the FMLA. Because the employer is obligated for designating leave as FMLA leave, this argument holds some merit. Fortunately, we have legal guidance on what course of action employers should take when they are faced with sick employees or requests for leave without knowing any facts about why leave is being requested.

In 2002, the United States Supreme Court issued its first opinion on the FMLA. The ruling generally favored employers. In Ragsdale v. Wolverine World Wide, Inc., the Court struck down a Department of Labor (DOL) regulation in which the DOL attempted to categorically penalize all covered employers that failed to properly designate FMLA leave, regardless of the facts surrounding the case, even if the employer granted broader rights than required by the FMLA.

The Court found the regulation at issue had the effect of giving employees an additional 12 weeks of FMLA leave in every case in which the employer failed to designate otherwise eligible FMLA leave as such leave. The Court held that the regulation was overbroad and "relieves employees of the burden of proving any real impairment of their rights and resulting prejudice." When striking down the regulation, the Court left the door open for further discussion of an employer's duty under the law, when it stated: "employers must decide, almost as soon as leave is requested, whether to designate the absence as FMLA leave. The answer might not always be obvious, and this decision may require substantial investigation."

Employees have sought, and will continue to seek, FMLA protection under a number of different scenarios. And, employers must be careful not to violate other laws, such as the Americans with Disabilities Act, when denying FMLA leave. Employers can't stop employees from suing, but they can guarantee their best chances for success by acting in accordance with FMLA.

As stated above, employees are not required to expressly assert rights under the FMLA when requesting leave, or even mention FMLA. They are only required to state that leave is needed. An employee is only required to provide the employer "enough information to establish probable believe that [the employee] is entitled to FMLA leave." Such notice is likely to be found sufficient to trigger an employer's duty to request such additional information from the employee's doctor as may be necessary to confirm the employee's entitlement.

However, employers beware! The Alaska Supreme court recently confirmed the reasons why all levels of management and HR personnel must be made aware of the rights of employees and obligations of the employer under the FMLA. In Municipality of Anchorage v. Gregg, (Alaska Sup. Ct. 2004), the Court held that the Anchorage police department violated the FMLA where it failed to inform an employee of her right to FMLA leave. Gregg suffered from several ailments, including injury from a car accident, stress related to domestic violence, and pregnancy. In January she was given a medical release to return to work, but stayed out on paid sick leave in an effort to deal with her family problems - until her employer discovered in March that she was released to return to work. When her employer asked her to come back to work, Gregg requested unpaid leave for time "to work things out" and to "get her life together." Her request for leave without pay was denied two times, as she had been given a prior medical release to return to work. The plaintiff was asked to return to work and when she did not, she was fired.

Gregg then sued for violations of the FMLA. The resulting decision by the Alaska Supreme Court is troubling to employers for several reasons. First, even though the employee had been released to work, the Court found that Gregg was not "fully diagnosed," thereby adopting a very broad definition of "serious health condition." Next, the Court held that Gregg was entitled to relief based on a retroactive diagnosis of post-traumatic stress disorder, and reasoned that she did not need to provide a contemporaneous diagnosis to support her request for leave because sometimes these types of conditions are not capable of being diagnosed at the time. Finally, the Court found that Gregg's statement that she needed time to "work things out," was a sufficient request for leave under the FMLA, even though she never mentioned her medical condition or the FMLA. Under this type of reasoning, an employer who has a medical release stating that the employee is capable of working cannot rely on the release.

While the holding in Gregg's case may not be typical of how many courts would have ruled, it does make clear that employers need to protect themselves, through the training of all levels of management and human resources (HR) staff, and that any request for leave can give rise to the possibility of an FMLA claim. Developing a strong internal FMLA policy and procedure is therefore critical.

What does this all mean? Employers who comply with their obligations to notify employees of their rights under the FMLA, by posting the proper notice and making a reasonable inquiry when an employee requests leave that is ambiguous or would give a reasonable person probable cause to think that FMLA would apply, will likely be treated as having met their obligation under the law. Employers who do not comply with the law risk litigation and the penalties that may be imposed under the law, including legal and equitable damages, interest, and attorneys fees' and costs. Employers should take the steps necessary to educate management and Human Resources on the particulars of the FMLA, and the company's leave policy.

© 2005 The Human Equation. All rights reserved. No reproduction, display or sale is permitted without the express written consent of the copyright owner.

The Human Equation's newsletters and publications are intended as an information source for the clients and friends of the firm. Their content should not be construed as legal advice, and readers should not act upon the information in these publications without professional guidance. Please note that newsletters and publications that are archived by The Human Equation or are not updated after initial publication and may not contain the most current information available.