One of your employees, Ms. Brushwood, cut the sole of her foot at home. The urgent care facility wrote her a note instructing her to miss one day of work. Ms. Brushwood expressed great surprise about receiving only one day of excused absence (Ms. Brushwood had a history of taking FMLA leave, combined with bad non-FMLA unexcused absences - to her, the FMLA stood for the "Friday Monday Leave Act"!(that's a joke I heard at the SHRM National Conference last week)).
Ms. Brushwood called her supervisor, Ms. Kent, and left a message describing her injury. The next morning, she again telephoned Ms. Kent to explain that her foot was injured, she had visited an urgent care facility, and she had a doctor's note to miss work for one day.
Ms.Kent, who must be an angel, was concerned that just one more unexcused absence would trigger Ms. Brushwood's termination, because she had exceeded the maximum number of unexcused absences. Ms. Kent asked Ms. Brushwood if she could visit her personal doctor to see if he would keep her off work longer than one day so she could qualify for short-term disability and FMLA leave.
Ms. Brushwood told Ms. Kent that her personal physician would not override what the urgent care doctor had told her.
So, after missing one day, Ms. Brushwood telephoned Ms. Kent that she would have to miss a second day.
As mentioned above, one more unexcused absence would trigger Ms. Brushwood's termination. Ms. Kent comes to you to ask whether she should fire Ms. Brushwood, or give her another FMLA leave.
So, the question you have to answer is: whether Ms. Brushwood has provided enough notice to trigger protection under the FMLA? Before I give you the answer, let me tell you what happened.
Ms. Kent called Ms. Brushwood back the same day that she was terminating her employment. Ms. Brushwood then appeared at the office on crutches to remove her things and sign her termination papers. The paperwork listed "violation of attendance policy" as the reason for her discharge.
Ms. Brushwood next visited her personal physician, who noted a slightly swollen laceration on the ball of her foot. Three months after her termination, it turned out that she did have a serious medical condition, as a surgeon removed a cyst that had grown over the scar after two nonsurgical injections failed to correct it.
Hmmmm . . . . .
Of course, Ms. Brushwood sued her employer for not providing her FMLA leave. She lost, because the district and appellate courts over Virginia found that she did not provide enough notice to her employer to trigger FMLA protection.
As you know, under the FMLA, an employee is required to notify her employer when she needs FMLA leave. However, she need not expressly assert her rights under the Act or even mention the FMLA; she only has to state that leave is needed. Once she has provided notice of a serious health condition and alerted her employer that the FMLA's protections may apply, the employer should ascertain whether she is seeking FMLA leave and obtain more details.
In this case, the court ruled that at the time the employer terminated her, it didn't have sufficient notice that she could have a serious health condition that met the FMLA's requirements (i.e., a period of incapacity of more than three consecutive calendar days and two or more treatments or a regimen of continuing treatment under the supervision of a healthcare provider).
At the time Ms. Brushwood spoke to Ms. Kent about her injury, she didn't believe a doctor would excuse her for more than one day. The court said that this information triggered the non-application of the FMLA, and it also rejected her argument that her use of crutches or the cyst removal surgery constituted timely notice of an FMLA-qualifying health condition.