The Family and Medical Leave Act enables eligible employees to take leave for up to 12 weeks in a 12-month period for their own serious health condition, among other things.
How do you know if an employee is requesting FMLA leave? Do they have to say “F-M-L-A”? Heck no! But, they do have to provide enough information to permit an employer to conclude that the employee needs leave. But, what happens when the employee doesn’t say much? Rather, the biggest change is their workplace demeanor. Could that be enough to put an employer on notice?
Could a change in demeanor be enough to put an employer on notice? And, what if the employee doesn’t recognize that she even has a serious health condition?
Grab your pearls for clutching and read on…
Yep, a change in workplace demeanor may be enough to substitute for the letters F-M-L-A.
Well, at least according to a federal court in Illinois.
In Valdivia v. Township High School District 214 (opinion here), the plaintiff alleged that she had suffered through a hostile work environment, which caused her to cry uncontrollably at work many times. Noting that the “FMLA notice requirement is not demanding,” the court went on to describe a situation in which the employee’s change in behavior could be enough to place the employer on constructive notice of the need for FMLA leave.
Constructive notice? Hmmm… Do share:
An employee need not give direct notice of the seriousness of her health condition or even mention the FMLA or demand its benefits; indeed, direct notice may not be possible if the plaintiff “herself was unaware that she was suffering from a serious medical condition- or if the employee was unable to communicate her illness to her employer.
Wait, what?!?
Yep, the employee doesn’t need to recognize that she has a serious health condition.
So, not only does the employee not have to communicate anything, but the employee may not even know that she has a serious health condition. And, still, it’s up to the employer to offer FMLA leave.
Interesting. What do you think about that, Alexis Sanchez?
Yeah, I’m at a loss too. Maybe the court can explain:
In such cases, the notice requirement may be met indirectly; “clear abnormalities in the employee’s behavior may constitute constructive notice of a serious health condition.” In those cases, observable changes in an employee’s condition or uncharacteristic or unusual conduct at work may themselves provide an employer with adequate notice of a serious medical condition and obviate the need for an express request for medical leave.
I’m not feeling that. But, at least we’re getting some direction here. Right, Gilligan?
Ok, and in this particular case, the plaintiff did allege giving notice that she was feeling overwhelmed, afraid, not sleeping or eating, and unsure if she could continue to work. So, taking everything together, that’s some FMLA notice right there.
But that whole “unaware that she was suffering from a serious medical condition” thing. Yeesh!
Well, at least get in the practice of providing the notice paperwork if the situation even suggests that FMLA is in play. No harm there.
Ultimately, it’s up to the employee to certify the need for FMLA before you finally designate it as FMLA.