You Be The Judge: Did the boss or the worker close FMLA door?
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You Be The Judge: Did the boss or the worker close FMLA door?

Here’s a scenario based on a real-life employment law case. How do you think the court ruled?

“With this latest unexcused absence, you have 12 in the last six months,” supervisor Rina McDermott told employee Alan Seiler. “As you know, 10 is the limit. I have to terminate you.”

“You knew I needed extra leave to deal with my depression and stress issues,” Alan said. “How can you fire me?”

“Actually, I didn’t know that,” Rina said. “You asked me for a ‘mental health leave.’ You didn’t say anything about depression until today. But just to be safe, I asked you at the time whether you needed to take FMLA leave. And I put the paperwork you would have needed in your mail cubbyhole,” Rina said.

Leave of absence
“I remember,” Alan said. “But you must remember that I told you I didn’t have a doctor. I said I might have some trouble getting all that medical paperwork filled out. So I asked whether there was some other way we could go, as far as time off was concerned.”

“And we got back to you about that,” Rina recalled. “We said we couldn’t give you a leave of absence if you didn’t choose to request FMLA leave. So now you have a lot of unexcused absences, and as I said, we can’t tolerate it.”

Alan frowned. “I feel like if I ask for mental health leave you can’t just turn me down,” he said. “I don’t know what law this comes under, but I’m going to find out.”

Alan hired a lawyer and sued the company for interference with his FMLA rights. Did he win?

The decision
No, Alan didn’t win his FMLA lawsuit. The court ruled that supervisor Rina gave him the information he needed to request FMLA leave, and he chose not to. This was his own decision, not the result of any pressure from the company.

Here’s how the court reasoned: “When an employee is made aware of the procedures necessary to obtain FMLA leave and chooses not to seek FMLA protection, the employer does not violate the FMLA by terminating the employee for excessive absenteeism.”

What to listen for
Supervisors don’t have to be mind-readers to comply with the FMLA. If an employee says merely, “I don’t feel well,” the supervisor need not go through the FMLA notice drill. But if an employee says something like, “I’m feeling depressed and the doctor has me on Paxil,” the supervisor should:

  • ask whether the employee wants to apply for FMLA leave, and
  • either give the employee the necessary FMLA certification material, or send the person to the employer’s FMLA or HR specialist to get it.

Cite: Kobus v. College of St. Scholastica, No. 09-1583, 8th Cir., 6/21/10. Fictionalized for dramatic effect.


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