FMLA: Verbal Notice Trumps Employer Policy
The Family and Medical Leave Act raises legal issues that aren’t easy to address or are misunderstood. Consider the case of Harvey v. Waste Management of Illinois, No. 1:08-cv-06828, N.D. Ill. An employee had 11 points for unexcused absences. One more, and termination would occur. When he arrived at work on the day in question, he reported to two supervisor that he was sick. One of the supervisors noticed the employee was visibly ill and had trouble standing. It was decided that the employee should go home. The employee’s absence that day was considered unexcused, giving him 12 points. He was terminated.
The employee filed suit, claiming that his FMLA rights had been violated. The employer contended that in order for the employee to take FMLA leave, he was required to give notice by contacting the employer’s Time Off Planning Service Program (TOPS). He hadn’t given notice to TOPS. The court ruled it didn’t matter.
Supervisors saw that the employee was in no condition to work. The employee was admitted to the hospital the next day and diagnosed with Addison’s disease, symptoms of which include fatigue, general weakness, lightheadedness and nausea. The employee’s girlfriend called the supervisors to let them know he was in the hospital.
The court made quick work of the case. A DOL regulation, Section 825.302(d) says that “failure to follow . . . internal employer procedures will not permit an employer to disallow . . . FMLA leave if the employee gives timely verbal or other notice.” His supervisors had witnessed the employee’s condition and had received a call from the girlfriend. Thus, required notice had been given.
Supervisors don’t have to know all the in’s and out’s of the FMLA. They do need to know that if an employee says he’s sick, this should be reported to HR to make sure that the FMLA is taken into account. Thus, FMLA training for supervisors is important.
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Chris Parker's practice focuses on the representation and counseling of companies in matters pertaining to the workplace and the protection of their intellectual property and trade secrets. In addition to serving as an advocate for clients, Mr. Parker is also trained as a mediator and frequently serves as a third-party neutral.
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Jimmy Daniel provides counseling to businesses of all sizes related to the employment relationship. He assists in the drafting of employment agreements, policies, and handbooks, as well as provides guidance related to compliance with federal, state, and local legislation such as the Fair Labor Standards Act and the Family and Medical Leave Act.
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While serving in an Of Counsel relationship with the firm, Mr. Bridgesmith also serves as the Executive Director at the Institute for Conflict Resolution at Lipscomb University and as an officer and principal in Strategic Resolutions Group, LLC. In these roles, Mr. Bridgesmith brings over 30 years of legal experience in dispute resolution and innovative workplace strategies to clients, students and business entities alike.
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I agree the FMLA angle is important, and that frontline managers can’t be expected to know all the ins-and-outs (translation: minefields) around FMLA. However, I can’t imagine a situation in which I would terminate an employee for attendance when I SENT THE EMPLOYEE HOME. Sheesh.
Frank,
Beats me, too. But this is what keeps employment lawyers in business.
Thanks for your comment.
John