Does an employee have to notify an employer that a leave may be used as FMLA leave? What information must be provided?
The 7th Circuit Court of Appeals upheld the termination of an employee that expected nearly a blanket exemption from such requirements in Elizabeth de la Rama v. Illinois Department of Human Services and Mary Zukowski. The Court held a 5-point standard that employees must meet in claiming their FMLA rights were violated (see below); providing sufficient notice of intent to take FMLA leave was a key issue in this case.
De la Rama worked as a registered nurse at Chicago-Read Mental Health Center, a residential facility for mentally ill adults run by the Illinois Department of Human Services. De la Rama called in sick from July 19, 2004 through August 19, 2004. Although she was diagnosed with fibromyalgia in early August, she did not convey this information to her employer until much later. Instead, de la Rama sporadically submitted notes from physicians stating that she was ill. Although de la Rama had exhausted her sick leave by this point, she continued to call in sick without explaining the nature of her illness.
On October 4, 2004, de la Rama submitted a completed form, which explained that she suffered from fibromyalgia and a herniated disk. The employer retroactively granted her leave to the date of her last sick day, September 2, 2004. De la Rama returned to work on January 3, 2005.
On September 9, 2005, after receiving a right-to-sue letter from the Equal Employment Opportunity Commission, de la Rama filed suit alleging defamation, racial/national origin discrimination, and violation of FMLA by refusing to allow her to take leave for a serious medical condition. On January 5, 2007, the District Court granted summary judgment for the defendants and de la Rama appealed. To prevail on her FMLA interference claim, de la Rama had to show:
- she was eligible for FMLA protections,
- her employer was covered by the FMLA,
- she was entitled to leave under the FMLA,
- she provided sufficient notice of her intent to take leave, and
- her employer denied her FMLA benefits to which she was entitled.
The District Court concluded that de la Rama failed to provide sufficient notice of her intent to take FMLA leave. The Circuit Court agreed. Although an employee is not required to refer to the FMLA in order to give notice of her intent to take FMLA leave, “the notice must succeed in alerting the employer to the seriousness of the health condition.” Calling in sick without providing additional information does not provide sufficient notice under the FMLA, even with a doctor’s note, if the note does not convey the seriousness of her medical condition.
As the District Court noted, during de la Rama’s absence in July and August, she never indicated her condition would require an extended leave, which the court said was insufficient to suggest she suffered from an FMLA-qualifying condition. De la Rama did not provide documentation of her fibromyalgia until October 4, 2004.
The 7th Circuit has recognized that in some situations, “an employee may be excused from expressing a need for medical leave,” such as “when circumstances provide the employer with sufficient notice of the need for medical leave.” De la Rama contended an incident that occurred in May or June 2004 in which she was taken from work to the emergency room should have put the employer on notice that she needed to take leave on account of a serious medical condition.
Based on this incident, she contends that when she began calling in sick to work in July, her employer should have known she was suffering from an FMLA-qualifying condition. The court found otherwise: “The FMLA does not require employers to play Sherlock Holmes, scanning an employee’s work history for clues as to the undisclosed, true reason for an employee’s absence. There is simply nothing in the record to suggest the kind of ‘dramatic, observable change in [de la Rama’s] work performance or physical condition’ that would excuse her from failing to notify the Department of her need for FMLA leave.”
Because de la Rama received FMLA leave after providing notice in October 2004, and because she did not provide adequate notice prior to that date, the Circuit Court affirmed the District Court’s grant of summary judgment on this claim.