FMLA Articles

Talking about symptoms can be notice of the need for leave

If an employee were to tell you (or her supervisor) about symptoms she’s been having, and asking for some time off because of those symptoms, what would you do? Assuming you are covered by the Family and Medical Leave Act (FMLA), would you deny the time off and terminate the employee? That’s just what one employer did do. Case in point After successfully working for the employer for years, Veronica was promoted and soon thereafter, began experiencing severe psychological problems. She had trouble sleeping, eating, getting out of bed, and she lacked energy, had bouts of uncontrollable crying, racing thoughts, an inability to concentrate, and exhaustion. Veronica began going into work late because she could not drag herself out of bed, and she started leaving work early because she could not control her crying. Veronica did not attempt to hide her symptoms. To the contrary, she met with Trevor, her supervisor, and said that she was feeling overwhelmed, had lost weight, was not able to sleep, and was not hungry. Trevor tried to give Veronica a new work assignment, but Veronica said she was unable to accept the new assignment. They met again two days later, and Veronica once more described her symptoms. She asked for a reduced schedule, thinking that time away from work might help. Trevor denied the request. The two had a third conversation, during which Trevor told Veronica she needed to decide whether she was leaving or staying at her job. Veronica began crying and the conversation ended inconclusively. Veronica and Trevor talked a few more times to discuss whether Veronica would continue her job, and at least one of these resulted in Veronica’s uncontrollable crying. Feeling pressure from Trevor to make her decision, Veronica resigned, only to regret the decision almost immediately. A few days later, she tried to rescind her resignation, but Trevor denied the request. Soon thereafter, Veronica was diagnosed with severe depression and anxiety. Eventually, she sued. The court found that Veronica had a serious health condition, in part based on her symptoms, which later led to a diagnosis. Employees need not be diagnosed during employment, as long as the condition existed then. For a chronic condition such as depression, lay testimony, supplemented by medical records, is sufficient. The court also found that direct notice from an employee to an employer is not always required; an employer’s constructive notice of an employee’s need for FMLA leave may be sufficient. Veronica’s behavior displayed more than danger signs that something had medically gone wrong. She asked for a reduced schedule, even though she did not expressly mention the FMLA at the time. She indicated she was incapable of accepting a new work assignment. Trevor knew about Veronica’s problems, the profuse crying, late arrivals and early departures, and inability to finish tasks. Trevor, therefore, had notice of her problems and, therefore, notice of the need for FMLA leave. Employee notice of the need for leave can take many forms, and no magic words need be uttered. Valdivia v. Township High School District 214, 7th Circuit Court of Appeals, No. 19-1410, November 12, 2019 The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content. This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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