Do you require your employees to fill out a form or an application to request leave under the Family and Medical Leave Act? If not, are you thinking of changing to such an approach? Either way, pay attention to this story about Carrie, whose particular leave situation is instructive for employers.

The Facts

Carrie was a bus driver and cafeteria worker for a local school district. Interesting combination, but I’ll keep my comments to myself.

Carrie requested sick leave to attend her grandchild’s birth, but under the terms of her collective bargaining agreement, she could use only one sick day for the birth, and she was required to use personal days for the rest of the time off.

As the story goes, immediately after her grandchild was born, Carrie called in sick with bronchitis, indicating that the medical condition would cause her to miss work for the rest of the week. She later claimed to be bedridden and required a breathing machine during the time she was absent.

When Carrie returned to work, she filled out a “sick leave” form, explaining that she had “acute bronchitis, fever [and an] ear infection.” She attached a note from her doctor excusing her from work because of an unspecified “illness.” The sick leave form included a section in which Carrie could have requested FMLA leave for her absence and contained a a brief explanation of how an employee could qualify for FMLA leave. Notably, Carrie did not request FMLA leave, opting instead for regular, paid sick leave.

Not surprisingly, Carrie’s supervisor found the timing of her absence too coincidental, given that Carrie earlier had requested sick leave for the same period of time. Her supervisor reviewed security camera footage from the week Carrie was absent, and sure enough, the video showed Carrie picking up her granddaughter at the school.

Busted.

As a result, the school believed Carrie was lying about the reason for her absence. She later was terminated for an unrelated performance issue.

The Ruling

After her termination, Carrie filed an FMLA interference claim, contending that the school should have characterized her leave on this occasion as protected by the FMLA.

Noting that Carrie had taken FMLA leave on a number of previous occasions, the court determined that she knew well the school’s policy for requesting FMLA leave. So, when the school asked her specifically on the sick leave form (and included a definition of FMLA leave on that form), and she declined FMLA leave in favor of paid leave, it was clear that the school “was no longer obligated to her” under the FMLA. The court also determined that Carrie could not “retroactively” invoke an FMLA right she previously chose not to exercise.

FMLA interference claim denied.  Amstutz v. Liberty Center Board of Education (pdf)

Insights for Employers

This decision is an illustrative one for employers, as it gives us good insight into what we need to include in our leave request forms to insulate us from an FMLA interference claim:

  1. As a general rule, employers should use a general leave of absence request form, allowing employees to specify any of the reasons for their need for leave.
  2. If you ask an employee to affirmatively indicate whether they are requesting FMLA leave — by checking a box or specifically stating so — it is imperative that you provide enough information about what the FMLA is.

Keep in mind the basic premise of FMLA notice, namely, that the employee is not required to invoke the Act or the letters F-M-L-A to request leave. The employee need only provide facts sufficient enough to put the employer on notice of the need for FMLA leave. So, as an initial matter, I get a bit queasy when my client uses a leave of absence form that asks the employee — without more — to state affirmatively whether they need FMLA leave or not.

This type of form might be effective for someone like Carrie, who had taken FMLA leave on a number of previous occasions.  But what about the employee who has never requested FMLA leave before and doesn’t have a clue as to what FMLA stands for?  This is where the risk comes into play. Employers minimize this risk when they carefully explain on the leave form what circumstances might be covered by the FMLA.  An even more effective form actually links to the employer’s comprehensive FMLA policy.

  1. The kind of form used by the school in this case can be particularly effective where an employee has taken FMLA leave in the past.  Clearly, the fact that Carrie took FMLA leave on previous occasions was significant in the court’s determination that she knew what kind of leave she was (and was not) requesting when she completed the school’s sick leave form.

That all said, let’s not assume our forms are up to snuff.  If you’re using a leave of absence form covering multiple forms of leave, including FMLA leave, be sure to have them reviewed by your legal counsel.  A few (fewer) words could have meant a different and far more difficult result for the school district here.