Be Proactive with Possible FMLA Requests

By Scott M. Wich February 20, 2019
Be Proactive with Possible FMLA Requests

​If an employee with a known medical condition requests the use of vacation days without making any mention of that condition, is an employer expected to recognize that request as one for possible Family and Medical Leave Act (FMLA) leave? Perhaps, in the opinion of a federal district court judge. The decision is a cautionary tale for human resource professionals managing FMLA issues.

The employee had worked as an account manager for several years. In 2013, he expressed his interest in retirement because of his age. In March 2015, the employee was diagnosed with brain cancer. While he received treatments, he never requested any leave.

According to the employee, in August 2016, he discussed his concerns about his age and medical condition with a company executive. He had a follow-up conversation with his president and general manager in December 2016. Also according to the employee, during this conversation, he raised the question of retiring at the end of December 2016 and taking accrued vacation time thereafter. The president allegedly suggested simply retiring at the end of the year.

The employee mistakenly believed that he had 200 days of accrued vacation time available that, at the time of his retirement, would have kept him employed through part of 2017. The belief was significant, as the employee was required to remain employed through March 2017 to be entitled to a sizable bonus for 2016. The employee was not paid the bonus and subsequently sued his employer under a number of breach-of-contract theories as well as a claim of FMLA interference, asserting that his employer failed to give notice of his FMLA leave rights after being advised of his request for leave.

[SHRM members-only toolkit: Managing Family and Medical Leave]

The court found no merit to the contract claims, concluding that the employer's disclaimers made clear there was no contractual right to any vacation days. However, the court found that the employee's FMLA interference claim could not be dismissed. The court noted that, in August 2016, the employee had discussed with his employer concerns about his medical condition. Further, in December 2016, the employee requested time off from work in the form of vacation days. The employer never gave the employee a notice of his eligibility for FMLA leave. A failure to give such notice can give rise to an interference claim.

The court concluded that the employer was arguably on notice that the employee was requesting a leave of absence relating to his medical condition. The court noted that an employee need not specifically request FMLA leave. Rather, "the critical test for substantively sufficient notice is whether the information that the employee conveyed to the employer was reasonably adequate to apprise the employer of the employee's request to take leave for a serious health condition," the court stated. It concluded that a jury must decide whether the employee's comments in August and December 2016 were enough to constitute a request for a leave of absence.

Estate of Sienkiewicz v. Creative Techniques Inc., E.D. Mich., No. 17-12705 (E.D. Mich. Oct. 18, 2018).

Professional Pointer: Leave management for employees with a known limitation must be addressed with care. A failure to be proactive in addressing absence requests from such employees, through the issuance of appropriate FMLA notices or the commencement of interactive processes, can leave an employer vulnerable to leave-related claims.

Scott M. Wich is an attorney with the law firm of Clifton Budd & DeMaria LLP in New York City.

[Visit SHRM's resource page on the Family and Medical Leave Act.]



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