FMLA pop quiz

Imagine that the wife of one of your employees fell on the ice in their church parking lot on a Sunday morning and broke the arm of her dominant hand. That night, your employee sends an email to his immediate supervisor, explaining his wife's fall, a visit to an emergency room, and an appointment with an orthopedic specialist on Monday morning  noting that he would not be in to work on Monday because of all of this. After visiting the doctor on Monday morning, your employee's wife had out-patient surgery that afternoon. She was sent home with a prescription for narcotic pain medication, and the employee was told that his wife was not to be left alone for the next 24 hours. Late Monday afternoon, your employee sent a second email to his immediate supervisor with this information and concluding he would not be in to work the following day, either. The employee returned to work on Wednesday.

1.    Has the employee requested FMLA leave based on the content and timing of his emails?

The substance of the information this employee provided in his emails is sufficient to demonstrate that the FMLA is in the picture to cover his absence. The employee notification requirements for unforeseen FMLA leave can be found at 29 CFR §825.303. Those requirements are not onerous. Essentially the employee is only required to provide enough information to apprise the employer that the reason for the absence (and thus the leave) may be FMLA qualifying. The employee does not even need to mention the FMLA by name. Here, the employee is likely needed to care for a covered family member a spouse who most likely would meet the standard of being incapacitated' due to what is likely a serious health condition. If the employer has questions as to whether or not the situation is covered by the FMLA, the employer is required to inquire further. The regulations also require that the employee tell the employer about the need for unforeseen leave as soon as practicable under the circumstances. Here, the employee provided the first notification within 12 hours after the unforeseen fall. In addition, each of the employee's emails was sent before the next scheduled work day, hours before the scheduled start of work.

2.     Has the employee notified the right person about the leave?

The answer, at least as far the regulations are concerned, depends on company policy and practice. The regulations state, 'When the need for leave is not foreseeable, an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. 29 CFR §825.303(c). Here, the employee notified his immediate supervisor via email. At your company, if telling the immediate supervisor is the right entry point for reporting an absence, and if making the report via email is acceptable, then the employee did all that the FMLA requires. That said, I personally would not be comfortable asserting that an email is not the same as a telephone call – especially if the information was received. Can't you just 'hear' an immediate supervisor 'saying' – perhaps by reply email, perhaps by text, perhaps by phone – Thanks. Hope all is okay with [spouse's name]. Focus on getting her well?

3.    Can the employer fulfill its initial notice obligations in this scenario?

Assuming the immediate supervisor is not the person designated as being responsible for administering FMLA, then the immediate supervisor needs to pass this employee's absence information along to the person/department who has that responsibility. The immediate supervisor needs to know what absences to pass along to those who administer FMLA, and s/he needs to forward that information very promptly: An employer only has 5 business days to get the initial FMLA paperwork to the employee. In your business, are you training your front-line supervisors to spot possible FMLA leave situations? Are you certain that information that may be relevant to the proper administration of FMLA is getting to your FMLA administrator and getting there in a timely manner? The first thing the FMLA administrator needs to do is determine whether or not the employee is eligible for FMLA leave.  The three requirements for FMLA-eligibility are found at 29 C.F.R. Section 825.110(a). Whether the employee is FMLA eligible or not, the FMLA administrator needs to complete and send out the FMLA Notice of Eligibility and Rights & Responsibilities form (WH-381 "Notice of Eligibility and Rights & Responsibilities").  If the employee is eligible for FMLA, then your policy and practice should require the completion of a Medical Certification form (WH-380-F) because the leave is for a family member's serious health condition.  Form WH-380-E is for the employee's own serious health condition.  You need the Medical Certification for the family member so that you can determine whether the leave is truly FMLA-qualifying and also to obtain information that will help you plan for future absences your employee might need to help care for his spouse and her broken arm.

4.     Is this FMLA-qualifying leave?

Your FMLA administrator needs to be very familiar with the definitions of 'serious health condition' found at 29 CFR §825.113 in order to determine when an absence qualifies for FMLA leave. You need to be sure your FMLA administrator is trained so that s/he is able to evaluate a Medical Certification (received from the health care provider) to determine whether to designate the leave as FMLA-qualifying or not or to do so even in the absence of a Medical Certification. The situation presented here may qualify under a couple of definitions of "serious health conditions." First, we may have enough information to tentatively conclude that the spouse's health condition qualifies for the serious health condition called 'incapacity plus continuing treatment. See 29 CFR 825.113(b) defining incapacity and 29 CFR §825.115 defining continuing treatment. There are two ways to fulfill the incapacity plus continuing treatment category of serious health condition. Our situation inferentially meets the first one, which requires '[a] period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition,' plus '[t]reatment two or more times, within 30 days of the first day of incapacity . . . by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider.' The fact that the employee didn't miss more than three consecutive full calendar days of work does not provide any evidence at all on the question of whether the family member has a serious health condition.

The real question is whether the spouse was incapacitated from her regular daily activities for more than three consecutive full calendar days. Her incapacity began on Sunday, and even though the employee returned to work on Wednesday, one can probably be safe in assuming that the spouse's incapacity continued well beyond Wednesday. And we know she meets the continuing treatment requirement for this serious health condition because she has already visited a health care provider two times within the first two days of the start of the incapacity. Second, this spouse's broken arm might qualify as another type of serious health condition called conditions requiring multiple treatments, as found in . 29 C.F.R. Subsection 825.115(e). This type of serious health condition is defined as [a]ny period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for (1) [r]estorative surgery after an accident or other injury, or (2) [a] condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment. . .Consider the possibility of physical therapy. Once that Medical Certification is returned, and is found to be complete and sufficient, the FMLA administrator has just five days to evaluate it and send out the FMLA Designation Notice (WH-382). How did you (your FMLA administrator) do on our pop quiz? If you identified any weaknesses or obstacles in your notification processes, make the needed changes to your procedures, policies, training, internal staffing, or structures so that you can be confident that your company will react timely and be in compliance with the FMLA. It was more than 50 years ago that one of my still-remembered high school teachers admonished A word to the wise is sufficient.

If you have any questions regarding employee and employer notices under the FMLA, or any questions concerning compliance with the FMLA itself, please contact a member of Dickinson's employment law group.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed. 

- Russ Samson