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On June 12, 2006, the Seventh Circuit Court of Appeals, in Phillips v. Quebecor, decided that the employee, Marquita Phillips, failed to give her employer sufficient notice of a health condition to qualify for an FMLA leave. The employee was terminated for excessive absences under the employer’s no fault attendance policy. Phillips claimed that a three day absence should be considered qualified under the FMLA and, therefore, not chargeable as an absence under the attendance policy. The Court, however, held:
- The FMLA grants eligible employees the right to take leave because of a “serious health condition” that renders them unable to perform the functions of their position. 29 U.S.C. § 2612(a)(1)(D). The statute defines “serious health condition” as including “an illness . . . that involves . . . continuing treatment by a health care provider.” 29 U.S.C. § 2611(11)(B).
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- An employee provides adequate notice to the employer by stating “a qualifying reason for the needed leave.” 29 C.F.R. § 825.208(a)(2) . . . If “the employer does not have sufficient information about the reason for an employee’s use of paid leave, the employer should inquire further of the employee” as necessary to designate the leave, id., and may “obtain any additional required information through informal means.” 29 C.F.R. 825.303(b). If the required notice is not given, however, the employer can deny leave even if the employee has a serious health condition. Aubuchon v. Knauf Fiberglass, GMBH, 359 F.3d 950, 951 (7th Cir. 2004).
Phillips argued that she did give proper notice to her employer because the length of her requested time off – three days – had met the test of “continuing treatment.” Secondly, Phillips believed that her requested time off qualified for FMLA leave because her doctor was prescribing medication. However, the Court stated that the length of time off does not make the notice adequate and the employer was not given notice of the employee’s medication until after her termination. The Court’s conclusion provides:
- Requiring employers to determine whether leave is covered by the FMLA every time an employee was absent because of sickness would impose “a substantial and largely wasted investigative burden on employers.” Aubuchon, 359 F.3d at 953. Phillips’ request for leave coupled with a mention of her sickness did not “place the employer on notice of a probable basis for FMLA leave” because she failed to convey any information regarding the nature of her medical problem. Id. As a matter of law, the information available to Quebecor did not require further inquiry.
This decision is helpful to employers, particularly when an employee, after the fact, tries to justify his or her absence. Although this is a favorable decision, employers should attempt to get an employee to admit, when asking for time off, whether he or she is, or is not, seeking FMLA leave. If the employee is seeking FMLA leave, an employer should review all of the criteria for FMLA eligiblity to avoid unexpected and costly litigation.
For more information regarding the federal and Wisconsin Family and Medical Leave Acts, attend our FMLA program, call our educational services department at (414) 988-8400 or e-mail kam@kclegal.com.
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