Although covered employers are required to provide leave under the Family and Medical Leave Act for eligible employees, employees must provide notice of such leave. It is clear that an employee is not required to specifically mention FMLA. However, what the notice looks like depends in large part on the individual circumstances. Recently, the Seventh Circuit Court of Appeals found that casual comments made to a supervisor were insufficient FMLA notice.
In Nicholson v. Pulte Homes Corp., the Court of Appeals found for the employer dismissing the employee’s FMLA claims. Pulte Homes Corp. placed Donna Nicholson, a sales associate, on a performance improvement plan in 2007 when she failed to meet her monthly sales quota. Subsequently, Ms. Nicholson mentioned her father’s leukemia to her supervisor indicating that she might need time off due to his possible chemotherapy treatment. The following spring, Ms. Nicholson mentioned to her supervisor that her mother suffered from a kidney disease and that she took her mom to doctor’s appointments on her days off. Ms. Nicholson later noted that her father’s condition worsened to stage III cancer. When Ms. Nicholson failed to make a single sale in the month, the Company put Ms. Nicholson on another performance improvement plan setting goals for the next two months. Upon receipt of the plan, Ms. Nicholson mentioned that she was unable to work outside her normal hours due to her responsibilities for her parents. When Ms. Nicholson failed to meet the performance goals, the Company decided to terminate her employment. Prior to informing Ms. Nicholson of the termination, Ms. Nicholson called off noting that she had to take her mom to the emergency room. When Ms. Nicholson returned to work, the Company notified her of the termination decision.
Although Ms. Nicholson failed to follow the Company’s policy of contacting human resources to request FMLA, the court analyzed whether Ms. Nicholson alerted Pulte Homes of the seriousness of the health condition and that the leave concerned a family member. Here, the court found that Ms. Nicholson simply provided casual conversation regarding the challenges of having aging parents and at most noted that she might need time off due to a possible need for chemotherapy. Although Ms. Nicholson notified her employer of a family member’s health condition, her need for FMLA leave was not obvious as she did not communicate that she needed to take time off to care for her father. Thus, the court found that Ms. Nicholson’s conversations were too indefinite to put the employer on notice.
Employers are reminded that employees can invoke rights under the FMLA even if they fail to comply with proper company policy by informing their supervisors. Thus, supervisors should be trained to understand when FMLA might apply to ensure that employers are complying with the FMLA by providing notice and certification forms to eligible employees.
