Employee Only Needs to Inform Employer of Probable Need for FMLA

May 24, 2007

The Seventh Circuit Court of Appeals, whose jurisdiction encompasses Wisconsin, recently issued a decision under the Family and Medical Leave Act of importance for employers. In Burnett v. LFW, Inc., Case No. 06-1013 (12/26/06), a janitor filed a claim against his former employer, the Habitat Company, alleging the employer had violated the federal Family and Medical Leave Act. In October of 2003, the employee, Burnett, informed his employer that he was experiencing medical difficulties. Burnett was offered a transfer to a different facility but he declined that offer because he had a “weak bladder” and, with the transfer, it would be further from the restrooms. After a week-long absence, Burnett again spoke with his supervisor about his health. Burnett gave his supervisor a doctor’s note for blood testing to justify some of his absence. Burnett also explained to his supervisor that during the time he was absent from work, he visited his doctor, underwent a physical examination, and learned that he had two serious health problems – high Prostate-Specific Antigen and high cholesterol levels. Burnett informed his supervisor of his upcoming doctor’s appointments and the need to see a urologist. Subsequently, Burnett advised his supervisor that he would be undergoing a prostate biopsy and gave one of his supervisors a document describing the prostate ultrasound and biopsy procedures. Approximately one week later, the supervisor issued Burnett two written reprimands. The first reprimand accused Burnett of wasting Company time by disrupting another employee’s work. The second reprimand accused Burnett of being disruptive during a conversation he had with his supervisor regarding his upcoming doctor appointments. Burnett filed a union grievance and, on advice of his union representative, he did not return to work until the day of a meeting between union officials and Company officials on the grievance. Burnett was then issued a third reprimand for missing work for three days and was suspended for three days without pay. At the union meeting, Burnett told his supervisor and others that he was scheduled to have a biopsy the following day. Burnett underwent the prostate biopsy. The following day, Burnett gave Company officials a document entitled “Treatment Plan,” confirming that he had had a biopsy and providing instructions to avoid heavy lifting or strenuous activity following the biopsy. His request for light duty was ignored. The same day, Burnett submitted a previously approved vacation request for the second week of February. The next day, he submitted an additional vacation request for the first week in February. On January 31, Burnett went to the emergency room due to complications from the biopsy. On February 2, the supervisor sent a letter to Burnett terminating his employment. On February 10, Burnett was diagnosed with prostate cancer. Burnett argued that the Company had interfered with the exercise of his FMLA rights. He asserted that the periods of time off that he requested were protected by the FMLA, that he was denied FMLA leave, and his termination violated the FMLA. The Company argued that Burnett had not provided it with specific notice of his request to use FMLA leave. The Court stated:

An employee need not expressly mention the FMLA in his leave request or otherwise invoke any of its provisions. . . The employee’s notice obligation is satisfied so long as he provides information sufficient to show that he likely has an FMLA-qualifying condition. . . The employee’s duty is merely to place the employer on notice of a probable basis for FMLA leave. . . Once an employee informs his employer of his probable need for medical leave, the FMLA imposes a duty on the employer to conduct a further investigation and inquiry to determine whether the proposed leave in fact qualifies as FMLA leave. . . The employee just has to give the employer enough information to establish probable cause, as it were, to believe that he is entitled to FMLA leave. (Emphasis added.)

The Court noted that the facts of Burnett’s case presented a close question because at no point prior to his termination did he communicate to anyone that he had prostate cancer – nor could he, as he was not diagnosed until after being fired. However, the Court noted that based upon the totality of the circumstances, Burnett conveyed sufficient information to his employer to put his employer on notice that he may need FMLA leave. Over a period of four months, Burnett told his supervisor that: (1) he was suffering from “a weak bladder,” which was severe enough to preclude a potential transfer of assignment; (2) he was on a trajectory of increased medical visits and testing, including a blood test showing an elevated PSA; (3) he had recently had a prostate biopsy (a test that his supervisor knew was used to diagnose cancer); (4) he repeatedly stated that he “felt sick” and intimated that his condition may be similar to his brother-in-law’s latent prostate cancer; and (5) his concerns were significant enough for him to suggest that he might commit suicide if he ended up bedridden as a result of prostate cancer. The Court noted that Burnett therefore gave an account of symptoms and complaints, which formed a coherent pattern and progression, beginning with initial symptoms, continuing with doctor’s visits, and then additional testing and results – that were all communicated (in one form or another) to his supervisor. Therefore, the Court found that there was support for Burnett’s FMLA claim that the Company had interfered with the exercise of his FMLA rights and possibly terminated him in retaliation for his attempt to exercise his rights. What does this mean to you? The Burnett case may have a substantial impact upon employers and their obligations under the FMLA. Based upon the outcome in Burnett, an employer must always keep in mind that an employee need not mention the words “FMLA leave” to put the employer on notice that the employee may, likely, or probably, need FMLA leave. If an employer is put on such notice, the employer has a duty to inquire further as to the employee’s medical condition and determine if the employee is entitled to FMLA leave. Failure to do so can result in a situation that the employer in Burnett found itself in and which exposed it to liability under the FMLA. If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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