What happens when your previously top-performing employee starts having attendance issues? Sounds like a no-brainer, no? You talk to the employee and document the verbal counseling. If it continues you might progress to a write-up. What happens when s/he tells you s/he has been diagnosed with depression, and is adjusting to medications? Your first thought might be to begin the interactive process and try to provide a reasonable accommodation pursuant to the Americans with Disabilities Act. So far so good. What if s/he says s/he needs some time off. You then continue trying to provide a modified schedule. Here’s where you may run into trouble — with the FMLA. What? Why? Can that really happen? It can and it did in a real, live case.
The case is (Hannah P. v. Daniel Coats, Director of the Office of National Intelligence, No. 17-1943 (4th Cir. Feb. 19, 2019)). As I usually do, I’m first going to tell you what went down. Then I’ll give you some of my takeaways.
Hannah P (let’s just call her “Hannah”) worked as a temporary operations analyst for the Office of the Director of National Intelligence. By her employer’s own admission, she had been an excellent performer. Then she received a very stressful assignment– coordinating executive responses to Edward Snowden’s unauthorized disclosures. (You can probably see already how someone might get stressed from that, right?) . She therefore needed to have a “flexible” schedule. (Read: long hours, weekend work, tight deadlines). Things should have gone back to normal after that assignment ended, but they didn’t. Her schedule continued to be erratic. Her employer created an attendance plan. She had trouble adhering to it. Her employer then referred her to their EAP. Her employer already knew she suffered from depression. She then disclosed to her employer that her psychiatrist recommended a 4-week leave of absence. The employer insisted she still needed to meet with the EAP before they could approve her request. She did so, and then renewed her request, which ultimately the employer approved.
Since her job was temporary, it eventually ended and she applied for a few permanent positions, but was rejected based on her prior attendance issues. Hannah sued alleging among other things FMLA interference. The District Court dismissed all her claims, and the 4th Circuit reversed the dismissal of the FMLA interference claim. The District Court held that disclosure of depression did not amount to an FMLA leave request and was not enough to put the employer on notice of her need for and rights to FMLA leave. The 4th Circuit disagreed. Here’s why:
Yes, the employee must provide notice of his/her need for FMLA leave. At the same time, an employee doesn’t need to say any magic buzzwords to do so. S/he need not even mention FMLA. The employee need only say enough to put the employer on notice that under the circumstances s/he has or may have rights under the FMLA, at which point the employer must advise the employee of those rights. This employer did not do that. Hannah’s disclosure of depression and issues adjusting to the medication was probably sufficient by itself. Even if it wasn’t, however, her disclosure of her psychiatrist’s recommendation should have been treated as an FMLA request. That did not happen. Hannah argued that even though her employer ultimately granted her request, that things would have gone differently had it granted her request when she first made it. The 4th Circuit therefore revived this claim, allowing it to live to fight another day.
So here are the takeaways:
- If your organization is big enough to be subject to FMLA and if your employee is otherwise eligible for FMLA (s/he’s worked for you long enough, put in enough hours in the prior 12 months) and if s/he discloses a medical condition, consider whether this person might be eligible for FMLA leave.
- If your employee requests time off for a medical condition, and you are subject to FMLA, treat that request as an FMLA leave request.
- If an employee is FMLA-eligible and requests leave, stop everything else and grant the request. Even if you are offering and providing what you believe are reasonable accommodations for a disability, you must grant the leave request.
- Remember that undue hardship is not a defense to an FMLA interference claim. Even if granting the request poses an undue hardship, in most cases you will still have to do so.
- Don’t have direct managers handle such requests. Make sure they get handed off to HR or another designated person that is not the employee’s direct supervisor.
OK, that should be enough for now. See you next week!
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