Court Rejects Employer’s Claim That Post-Termination Notice Of FMLA Leave Was Too Late


by Steve Bogue

Bogue, A. Stevenson
sbogue@mcgrathnorth.com
(402) 341-3070

Can an employee give notice of their need for FMLA leave after they have been fired? The Eighth Circuit Court of Appeals recently said “yes.” It rejected an employer’s claim that it had not interfered with an employee’s FMLA rights because it had fired the employee before receiving notice of FMLA leave.

In Clinkscale v. St. Therese of New Hope, a nurse objected to a transfer into a different unit. Emphasizing that she was not refusing to work in the new unit, she went to H.R. She was told she had to work in the new unit or she wouldn’t have a job. At that point, she began to exhibit signs of a panic attack: crying and shaking so severely that at one point, she requested an ambulance. She was told, in light of her obvious distress, to go home.

The nurse made an appointment with her doctor for the following morning. The doctor advised therapy and wrote two prescriptions. The doctor provided a note to St. Therese recommending she take the remainder of the week off from work. Later that day, she was informed she had been terminated the previous day for patient abandonment. Two days later, she submitted FMLA forms describing her as suffering from anxiety and panic attacks and recommending that she be excused from work for a week due to her condition. The hospital, however, claimed she was not entitled to leave under the FMLA because she had been terminated for reasons “wholly unrelated to the FMLA.” The hospital’s motion to dismiss was granted.

Upon appeal, the court acknowledged that the nurse was required to give notice to her employer of her need for FMLA leave. It noted that whether an employee has given sufficient information to put his or her employer on notice that an absence may be covered by the FMLA will be a question of fact for a jury to decide. The trial court below had concluded that a reasonable jury could have found the first doctor’s note was sufficient to put St. Therese on notice that the nurse had a “serious health condition” under the FMLA. It concluded, however, that the notice had been provided too late, as the employee had already been terminated.

The FMLA provides that when leave is needed for an unforeseeable event, notice must be given “as soon as practicable.” According to the regulations, that ordinarily means at least verbal notification to the employer within one or two business days of when the need for leave became known to the employee. The court concluded that there was a question of fact as to when the nurse had been terminated, since, from the record, it appears she was fired on the same morning she provided the first notice of a serious health condition from her doctor.

The court then noted that it had previously held that an employer cannot avoid liability by terminating an employee who takes leave in order to seek treatment for a condition that is later held to be covered by the FMLA. In other words, the employer who fires an employee who has claimed leave under the FMLA bears the risk that the health condition in question might later be diagnosed as a “serious health condition.” It was held that the hospital bore the risk that the nurse, who was crying, shaking and generally distraught during an interview with H.R., and was told to leave for the day might require additional leave for what was diagnosed mere hours later as a qualifying “serious health condition.” The court also observed that there was a causal connection between the nurse’s health condition and her alleged “patient abandonment,” which led to the termination of her employment.

Finally, the court held that the fact that the hospital did not know that the nurse had suffered from anxiety until she visited her doctor on the day after she was told to go home, does not support the employer’s position. It stated that the FMLA cannot be reasonably read to provide leave only for “veteran claimants” with a known history of serious health conditions and that it anticipates circumstances in which the need for qualifying leave arises unexpectedly. Thus, an employee’s previously clear medical history will not preclude a subsequent claim of interference with FMLA rights when the need for leave arises unexpectedly.

The holding in Clinkscale is instructive with respect to a point which was a matter of contention when the FMLA first became law, but which has had few clarifying decisions. An employer who is on notice of an employee’s medical condition at the time of his or her termination is well advised to take its time to learn more about the condition to see whether it might rise to the level of a “serious health condition” under the FMLA. A condition which, at the time of the conduct in question, may not seem significant may later be diagnosed as a serious health condition under the FMLA, and if the employer has taken disciplinary action in the meantime, the employer is, essentially, gambling upon its perception of the condition and may later lose that gamble.

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