The Employer's Legal Resource: Buzz Words Not Necessary for Leave to be Covered by FMLA

12.01.16

Generally speaking, the Family and Medical Leave Act (FMLA) requires a covered employer to provide eligible employees with 12 weeks of job-protected leave for the following reasons:

  • For the birth of an employee's child or placement with the employee of a child for adoption or foster care;
  • To bond and care for a child (leave must be taken within 1 year of the child's birth or placement);
  • To care for the employee's spouse, child, or parent with a serious health condition;
  •  For the employee's own serious health condition that makes the employee unable to work;
  • For qualifying exigencies related to the foreign deployment of a military member who is the employee's spouse, child, or parent
  • Note: special rules apply for eligible employees who need leave to care for a covered servicemember with a serious illness or injury

Vincent Long began working for Mayco, Inc. as a laborer on April 11, 2011 and was fired for absenteeism on April 9, 2014, just two days short of his third-year work anniversary. When hired, Mr. Long informed Mayco that his son suffered from ADHD and that he would occasionally need to take off work to tend to his son's medical issues. During the course of his employment, Mr. Long received three written warnings and a three-day unpaid suspension for excessive tardiness and absenteeism. He was also warned that further tardiness or absenteeism could result in termination. On April 9, 2014, Mr. Long was fired after he left work to pick up his son from school. He filed suit against Mayco in Oklahoma federal court alleging claims for interference and retaliation under the FMLA. Mayco moved for summary judgment on both claims, arguing ADHD does not qualify as a serious health condition under the FMLA and that Mr. Long failed to comply with the FMLA's employee notice re quirements since he never requested FMLA leave.

The FMLA allows employees to take intermittent leave to care for a child with a serious health condition if such leave is medically necessary. The term "serious health condition" as defined by the FMLA means "an illness, injury, impairment, or physical or mental condition" that involves "inpatient care" or "continuing treatment by a healthcare provider." The "continuing treatment" category for a serious health condition under the FMLA includes the following categories:

  • Incapacity of more than three consecutive, full calendar days plus treatment by a health care provider twice, or once with a continuing regimen of treatment;
  • Incapacity related to pregnancy or prenatal care;
  • Chronic serious health conditions;
  • Permanent or long-term conditions for which treatment may not be effective; or
  • Absences to receive multiple treatments (including any recovery periods) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

Mr. Long alleged his son's ADHD constituted a chronic health condition—a category of serious health conditions that (1) continues over an extended period of time; (2) requires at least two annual visits to a health care provider for treatment; and (3) may cause episodic periods of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

In denying Mayco's motion for summary judgment, the court found a triable issue of fact existed as to whether the son's ADHD qualified as a serious health condition, noting evidence that Mr. Long's son could not properly attend school since he was repeatedly sent home due to ADHD symptoms, was being treated by several medical professionals, and had been placed on several medications to treat his ADHD.

The court also rejected Mayco's contention that Mr. Long failed to properly notify his employer that he wanted to use FMLA leave. Notably, Mayco was aware that Mr. Long had a son with ADHD and needed to leave work to care for his son's medical issues. According to Mr. Long, he never saw any posters or signs that mentioned the FMLA while working at Mayco and did not even know what FMLA meant. This created genuine issues of disputed fact as to whether Mayco was entitled to FMLA leave and whether Mayco gave Mr. Long proper notice for using leave under the FMLA.

Mayco had hoped to have the Court decide there was simply not enough evidence to go further with the case. The Court disagreed. Now, it is headed to trial where a jury will hear all of the evidence and determine its fate.

What can you learn from Mayco? First, remember that Mr. Long does not have to say the magic words—"FMLA." Employers cannot sit on their hands and claim ignorance just because the buzz words, "Family and Medical Leave Act," are not used by the employee. Next, despite Mr. Long's disclosure upon hire that his son had ADHD and he would need time off work to take care of his medical issues, Mayco did not inquire further to determine whether such absences qualified as FMLA leave. In a similar situation, you might inquire before terminating an employee – are any of the absences upon which you are relying protected by the FMLA? Finally, it appears Mayco may have violated the FMLA's employer notice requirements by failing to post the Department of Labor's general notice summarizing the FMLA's major provisions and telling employees how to file a complaint. The poster, which can be downloaded for free on the Department of Labor's website, must be posted in conspicuous places where it can readily be seen by employees and must contain fully legible text that is large enough to be easily read. The FMLA regulations also require that the general notice be included in the employee handbook or other written guidance to employees concerning employee benefits or leave rights. If the employer does not have such materials, the FMLA requires that each employee receive a copy of the general notice (WHD Publication 1420) upon hiring. By complying with these basic notice requirements, employers reduce their exposure to potential FMLA interference claims.

By Destyn D. Stallings, dstallings@dsda.com

 

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
litigation and counsels clients regarding everyday employment matters. 

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