Note to self: When one of my employees:
- falls off a ladder at work,
- is taken to urgent care by the company’s HR Director,
- asks whether the FMLA would apply to his absence,
- then, as a result of his doctor’s orders, takes a multi-week absence after the fall from the ladder…
I’m going to side the with the 99% of Americans who believe this fact pattern has put me on notice of the employee’s likely need for FMLA leave.
Yet, when this scenario actually occurred with an Indiana employer, the employer decided these series of events did not constitute proper notice from the employee of the need for FMLA Leave. Years later, this company is paying the price.
Mark worked in the parts department for Utility Trailers, and during one of his shifts in late March 2010, he fell off a ladder, re-aggravating a preexisting back injury. The HR Director was alerted to the accident, and she determined that Mark needed to go to the local urgent care immediately. She even took Mark to the urgent care and waited while he was treated.
Within days after the incident, Mark sought treatment from his personal physician, who ordered him to stop working for the time being (because of the fall). Within two days following the ladder accident, Mark delivered his doctor’s restrictions to the HR Director. When Mark met with HR, he claims to have asked the HR Director if he “should have FMLA leave.” She thought FMLA leave would not be necessary, telling him, “Because you’re only going to be gone a few weeks, you should be fine.”
Two weeks into his leave of absence in early April 2010, Mark called the company to determine whether he could return to his former position if he returned to work by early June 2010. The HR Director told him that he could return, but only to the second shift [his original position was on the first shift]. A few weeks later, however, the company contacted Mark to let him know that they needed to fill his position because it did not have enough employees to cover for him while he was out.
As the story goes, the company told Mark that if he was “completely released from [his] doctor wherein [he] could do manual labor . . . Mark could reapply for a position . . . if one is available.”
Mark never reapplied for a position. Instead, he filed a lawsuit.
You might have guessed it — this judge sided with the 99% of Americans in determining that the nature of the employee’s injury and his subsequent inquiry about whether FMLA leave would apply clearly put the employer on notice that his absence might be covered by the FMLA. As a result, the court determined that a jury would have to decide whether the employer violated the FMLA. George v. Utility Trailers of Indianapolis The case recently settled short of trial.
Insights for Employers
Plenty of lessons to learn from this employer’s trip up:
- Employers must do a better job of identifying when employees put them on notice of the need for FMLA leave. The employee need not use the letters F-M-L-A to request leave under the Act, but context and content count. Look at what happened here: a fall from a ladder, a trip to the urgent care, a lengthy leave of absence that a physician determined was necessary as a result of the fall, and an employee’s inquiry as to whether the absence should be covered by FMLA. There was little ambiguity — the employer got whacked over the head with the requisite notice. At that point, it had an obligation to determine whether the absence was covered by FMLA and designate appropriately. It did not, and it was a costly mistake.
- Notice the ultimate the company gave the employee: When you’re “completely released” from your physician, then you can reapply for employment. Employers need to distance themselves from this kind of terminology. When we communicate to an employee that they must be fully healed orcompletely released, we fail under the ADA to engage in an independent assessment as to whether the employee might need a reasonable accommodation to return to work. Check your model correspondence now and rid yourself of this kind of language.
- Remember the restoration rights of employee’s returning from FMLA leave. Without question, the FMLA burdens the manner in which employers staff their operations. The FMLA was passed knowing that it very well would create a hell of a time for employers like Utility Trailers to properly staff their parts department when an employee is off on leave for weeks on end. Unlike the ADA, there is no “undue hardship” argument under the FMLA, so we must live with the reality that FMLA absences often hamper our ability to properly staff our operations. We may not like it, but have to accept it.
- Also as to restoration, the FMLA regulations presume that the employer will return the employee to the same shift, since a return to a different shift (particularly when it’s a move from 1st to 2nd shift) is not an equivalent position. See 29 CFR 825.215e