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HR Solutions

More on FMLA/ADA:

Law Lightens the Burden

on Employers to Inquire,

But What about post-Leave

Request for More Time?

 

            As discussed on these pages, you have an FMLA duty to inquire whenever an employee has left enough clues that time off is related to a serious health condition.  It’s your move even if there is no request for FMLA leave. The employee may say just enough on the phone, coupled with (alleged) notice in the past that the person had a history of migraines, shingles, etc.  The courts have been shifting responsibility to employers to be alert to these clues.  What were the practical limits?

             Part of the problem is the DOL regulation that merely requires that the employee “state a qualifying reason for the needed leave,” and that if the employer lacks sufficient information, the employer “should inquire further.”  29 CFR 825.208(a). 

             A breath of fresh air is Phillips v Quebecor World RAI, Inc., decided this summer by the Seventh Circuit Court of Appeals.   Phillips was in hot water because of repeated absences that were “chargeable” under the company’s absence policy and procedure, and when she was fired she sued, claiming that Quebecor was on notice of the need for FMLA leave on an occasion necessitating three days off.  She had called her supervisor to tell him that she was “sick” and was going to be off for three days.  Her boss did not inquire about the nature of her illness and did not request documentation.  Phillips did submit a form to an HR secretary stating that she was seen at a clinic and should be off work for three days.

            Phillips claimed the dismissal violated the FMLA because the three days off, ipso facto, demonstrated that she was under “continuing treatment” for purposes of qualifying her condition as a “serious health condition,” putting the company on notice.  The court of appeals rejected this argument.  She provided no evidence that she had received two or more treatments from, or a regime of treatment under the direction of, a health care provider.    Phillips claimed that on the first day of her three days off her doctor had prescribed medication, but the court found that this was irrelevant if she had provided no no notice of this prescription to her employer, and she had shown no “extraordinary circumstances” justifying her failure to let HR know.  Finally, Phillips had claimed that she learned later that her condition was attributable to a head tumor.  The court dismissed this allegation, since it was undisputed that she only learned of the tumor until several weeks after she was dismissed.

            Very helpful was this from the last paragraph of the court’s decision: “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.’”

            On the other end of the leave process is the challenge posed when the employee, after FMLA time runs out, asks for more time off.  Here are some thoughts, based on the court decisions on this point:

• You do have to consider the request for additional time off if the employee has a disability that is covered by the ADA or the Human Rights Act.
• You do not have to grant the time off if the person has a physical or mental condition that is not covered by the ADA or the Human Rights Act.
• You do not have to grant the time off if the absence requested will constitute an undue hardship, e.g., will seriously impair your operation.
• You do not have to grant an unlimited time off for a covered person.
• You do have to consider specific time periods that are reasonable, and unless there is a substantial problem with such an accommodation, you must probably will have to permit it.  The courts’ standard generally is that an employer must seriously consider a request for a “finite” period of time.
• The courts have made it plain that post-FMLA requests for six, seven, or twelve months additional time are unreasonable and need not be granted.
• You can and should insist on medical documentation when processing a post-FMLA leave request for a finite period of time.

 

10/26/06