If your employee sends you a text saying that she cannot report for work because she needs to be with her father in a hospital emergency room, does this qualify as FMLA notice? According to the Fifth Circuit Court of Appeals: “NO!”
Before you go deleting those messages, however, remember that employers should not lose sight of the longstanding admonition that employees do not need to specifically mention FMLA in an absence request and that employers have a duty to inquire further into a potential FMLA leave request if warranted by an employee’s statements.
The Fifth Circuit recently found that an on-call business analyst who texted her supervisor in order to request a change in work rotations because of her sick father did not make a proper or formal request for FMLA leave.
The employee worked for a university medical center in its IT department as a business analyst. Business analysts were responsible for maintaining the medical center’s information systems and assisting other employees who were having technical problems with the systems. In addition to their daytime shift, each business analyst was assigned to a rotating schedule of on-call duty once every 12 weeks. Each on-call assignment lasted seven days. The employee didn’t like her on-call assignments because they disrupted her sleep and – she argued – impacted her job performance during the day. She asked her supervisor to let her take 3 or 4 day rotations, but he declined that request.
The employee was scheduled to work on-call the week of Sept. 1, 2010. She sent a text message to her supervisor on Sept. 2, informing him that she would be unable to work that night’s rotation because her father was in the emergency room. Another supervisor agreed to swap call rotations with her for the week.
On Sept. 22, the employee began her make-up call rotation, but she did not respond to an operator’s six pages the following night. All business analysts were supposed to respond to pages within 15 minutes. If the business analyst failed to respond within that time, the operator would then try alternate numbers—typically a cell or home phone number—in order to seek support. Failing that, the operator would then contact the person listed as the backup.
On Sept. 23, the employee’s supervisor received a call as the backup, informing him that the operator had attempted to page the employee six times that night but had not received any response. The supervisor put himself on-call for the rest of the evening. The following morning, the supervisor asked the employee to log onto the on-call laptop so that he could verify that she was following the proper procedure. Instead, the employee handed the on-call laptop to the supervisor and tossed her pager out of her cubicle. She then retrieved the laptop case and on-call manual and took them to the supervisor’s office. She stated, “I’m so f****** pissed at you for what you did on my father’s heart attack,” and she then left work, without any of the equipment needed to perform her on-call duties that evening. Unbeknownst to any of her supervisors, the employee immediately went to the Employee Assistance Program office on the university campus. The employee tried to leave several messages for an Associate Vice President in her department to let him know that she had gone to the EAP, but because the VP had taken a personal day, he did not receive the voice mail messages until after Sept. 23rd. Later that same day (Sept. 23rd), the supervisor’s boss told the employee he was “accepting her resignation.”
The employee filed an action against the university alleging that it interfered with her right to take FMLA leave to care for her father and that it retaliated against her for requesting FMLA leave. However, the court found that the employee did not give proper notice of her intention to take FMLA leave.
The Court’s Decision
The court began its analysis by recognizing that although an employee need not use the phrase “FMLA leave,” she must give notice that is sufficient to reasonably apprise her employer that her request to take time off could fall under the FMLA and that the focus should be on what is “practicable” based on the facts and circumstances of each individual. The court further stated that “An employer may have a duty to inquire further if statements made by the employee warrant it, but the employer is not required to be clairvoyant.”
The employee argued that when she told her supervisor that she could not do on-call duty on Sept. 2 that he should have inquired further about the basis of her request since he knew that the employee’s father was over 90 years of age and in poor health and because she had told the supervisor that morning that her father was having breathing problems. The court stated: “It would be unreasonable to expect the supervisor to know that the employee meant to request FMLA leave based on these facts. The employee’s only request was to be relieved of on-call duty that night.” Notably, the Court also observed that “[the employee] had taken FMLA leave in the past and was familiar with the proper way to request it, yet she did not do so here.”
While the employer was let off the hook in this case, clearly another court might well find that these facts were sufficient to at least require the employer to inquire further as to the basis for the leave. With the undisputed facts that the supervisor knew that the employee’s father was over 90 years of age and in poor health and that she had told the supervisor that morning that her father was having breathing problems, it is plausible that another court might find that the employee was requesting to be relieved of on-call duty so she could care for her father’s serious health condition, i.e., FMLA leave.
What’s an Employer to Do?
Accordingly, if an employee reports some type of leave, which also appears to involve a health or medical condition (including that of a spouse, son, daughter or parent), employers should consider the other surrounding circumstances (i.e., what did people know when) and may wish to consider inquiring further to determine whether the absence is really a request for qualifying leave under the FMLA.
If you have further questions regarding this information, please contact the author, a member of Seyfarth’s Absence Management and Accommodations Team, or your Seyfarth attorney.