The circumstances surrounding employees who need Family and Medical Leave Act leave are not necessarily black-and-white. An employee in need of FMLA leave may also have a history of attendance problems at work. Even if the employee’s absenteeism is extensive and has the employee on the edge of termination — perhaps especially in these scenarios — a wise employer will proceed with extreme caution to ensure the employee’s absence is not covered by the FMLA before taking punitive disciplinary action. As with any matter, part of “proceeding with caution” means getting knowledgeable legal advice from an experienced Atlanta FMLA retaliation lawyer.
The FMLA case of a public bus driver clearly highlights this issue.
The driver, I.W., had sickle cell anemia. The employer knew about the condition as the driver had disclosed it when the employer hired him in 2018 and discussed the disease with several of his supervisors.
The driver had issues with absenteeism during his employment. His attendance issues triggered at least two suspensions from work, and by July 2021, he had accumulated enough absence points that he was on the brink of termination.
On July 7, the driver experienced a sickle-cell flare-up that required him to seek hospital care. The driver told the dispatcher that he had to go to the hospital and also that he had no babysitter for his child. The dispatcher recorded the reason for I.W.’s absence as “no babysitter.” That resulted in the employer assessing two attendance points, leaving I.W. over the limit.
Later that same day, the driver submitted an FMLA leave application.
A subsequent flare-up forced the driver to return to the hospital on July 8. The employer ultimately approved a period of FMLA leave starting on July 7; however, because the employer assessed two points for July 7, it went ahead and fired the driver.
Subsequently, I.W. sued the employer for FMLA retaliation. The trial court sided with the employer, concluding that the driver did not provide sufficient notice to the employer of his need to take leave on July 7.
The Notice Requirement is Not a High Hurdle
The appeals court ruled that this was an error. As the appellate court explained, demonstrating adequate notice “is not particularly onerous.” Although merely “calling in sick” by itself may not be enough, the law does not require an employee to “expressly assert rights under the FMLA or even mention the FMLA” at all. In essence, any time an employee offers up “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request” and “does so as soon as practicable under the facts and circumstances of the particular case,” he has met the notice requirement adequately to invoke his rights under the FMLA.
In I.W.’s case, he testified that he told the dispatcher that he had to go to the hospital. He then formally applied for FMLA leave later that same day, and the employer “granted his FMLA leave for a period covering his absence on July 7,” and made that decision before it executed the termination of the driver’s employment.
That evidence was a significant problem for the employer when it came to the FMLA retaliation claim, according to the court. Simply put, the employer “could not legally penalize [the driver] for an absence that became FMLA leave before his firing.”
Here, the employee’s notice consisted of little more than a same-day phone call stating “I have to go to the hospital,” followed by the prompt filing of FMLA paperwork a few hours later. As this case illustrates, employers should bear in mind that, potentially, that is enough to satisfy the notice requirement.
Do you have questions about the FMLA, FMLA interference, or FMLA retaliation? Count on the knowledgeable Atlanta FMLA retaliation attorneys at the law firm of Parks, Chesin & Walbert to provide you with helpful advice and powerful advocacy to protect your rights fully. Contact us through this website or at 404-873-8048 to schedule a consultation today.