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The Seventh Circuit Court of Appeals has continued its trend of holding employees accountable for their obligations to employers under the FMLA. In a recent decision, the court clarified what notice an employee must give an employer before an employer’s obligations under the FMLA are triggered. In Aubuchon v. Knauf Fiberglass, GmbH (decided
March 8, 2004
), the court held that an employee does not meet his or her notice requirement by “merely demanding leave.” An employee “must give the employer a reason to believe he is entitled to it.”
In Aubuchon, a day or two before her projected due date of August 19th, the employee’s wife went into false labor. Shortly after the false labor began, on August 21, the employee notified his employer orally that he wanted to stay home with his wife until she gave birth. He did not mention that his wife was suffering complications, false labor, or provide any other indication of a serious health condition. Aubuchon stopped reporting for work after August 21st but the Aubuchon baby was not born until September 2. After he left work on August 21, the company provided Aubuchon with a FMLA request form. He completed and returned the form to the employer on September 1st, the day his wife went into real labor. Neither in his request form nor in subsequent communications with his employer following September 1st did Aubuchon indicate that his absence was more than wanting to “stay home with his wife,” unrelated to any serious health condition.
On September 4, the company denied Aubuchon’s leave request because he failed to indicate a serious health condition supporting FMLA leave. Because his absences were unexcused since August 19th, he was terminated under Knauf’s attendance policy. Aubuchon’s union grieved his discharge and Knauf agreed to reinstate him without backpay. The company then discovered that Aubuchon had falsified his original employment application by failing to disclose he had been fired by previous employers. He was fired again.
After the company’s denial of his FMLA leave request and his first discharge, Aubuchon produced a doctor’s note indicating that his wife had complications in her pregnancy. The court indicated that if Aubuchon had produced the note prior to or around the time that Aubuchon had originally requested the leave, that may have been sufficient to place the employer on notice that a serious health condition was indicated. However, the court found that Aubuchon had failed to comply with the notice requirement because producing the note after the fact was too late. The court stated: “Employees should not be encouraged to mousetrap their employers by requesting FMLA leave on patently insufficient grounds and then after the leave is denied, obtaining a doctor’s note that indicates that sufficient grounds existed, although they were never communicated to the employer.”
The court rejected Aubuchon’s suggestion, based upon language in the federal regulations, that merely demanding leave should be sufficient notice to an employer. As the court has held that an employee need not say “FMLA” to place an employer on notice, the court has ruled in Aubuchon that it is not sufficient notice for an employee to invoke “FMLA” without further indication of the medical reason the leave is required. Put another way, the court said, “[T]he employee’s duty is merely to place the employer on notice of the probable basis for FMLA leave. He doesn’t have to write a brief demonstrating a legal entitlement. He just has to give the employer enough information to establish probable cause, as it were, to believe he is entitled to FMLA leave.”
In its decision, the court cited the company’s procedure as “worthy of note” in dealing with the Aubuchon request. Specifically, when the employee made his initial oral request for leave, the employer did not deny the leave until it had followed its FMLA practice by allowing Aubuchon to complete a written FMLA request. The court indicated favor towards an employer who had documented basis for its denial. This documentation allowed the court to find that Aubuchon had “no excuse” for his failure to specify the medical condition justifying his request.
For more information regarding FMLA or other employment law issues, please call our educational services department at (414) 423-1330 or e-mail kam@kclegal.com.
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