Labor Logic

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John D. Finerty, Jr.

The Family and Medical Leave Act (FMLA) provides job-protected leave for employees who need time off work due to a serious medical condition, the birth or adoption of a child or to tend to an immediate family member with a serious health condition. When employees are absent from work, however, employers face scheduling and productivity issues.

The case of Phillips v. Quebecor World, Case No. 05-3744 (7th Cir. Jun. 12, 2006), addressed whether an employee could be fired under a no-fault attendance policy even though she was later found to have a serious health condition.

Background

Quebecor is a Brookfield, Wisconsin printing company. The employer had a no-fault attendance policy that subjected employees discharge when they had four to seven “chargeable absences” within 12 months. “Chargeable absences” included tardiness, early departures from work, unexplained absences or absences related to “illness, injury, or non-qualifying personal reasons.” Phillips received a copy of the attendance policy while employed at Quebecor.

Quebecor gave Phillips a final warning for habitual absenteeism when she incurred her sixth chargeable absence due to an illness. She subsequently left work early, again notifying her employer she was “sick.” Phillips provided Quebecor a form indicating she was seen by a healthcare provider and would be off work for four days.

Subsequently, she incurred additional chargeable absences for arriving late to work and was eventually terminated. After termination, Phillips was diagnosed with a head tumor and sued Quebecor for violating FMLA.

FMLA Requirements

The FMLA grants employees the right to take job protected leave due to a “serious health condition” provided such condition involves the “continuing treatment by a health care provider.” Under the FMLA regulations, an employee must have a “period of incapacity” of more than “3 consecutive calendar days” and subsequent treatment and supervision by a health care provider relating to the same condition. See 29 C.F.R. § 825.114(a)(2)(i).

However, the FMLA also places the initial burden on the employee to notify the employer of facts adequate for the employer to determine that a condition falls under FMLA.

Specifically, if an employee offers a “qualifying reason for the needed leave” even without specifically invoking FMLA, notice to the employer is adequate. It then becomes the employer’s burden “to designate leave, paid or unpaid, as FMLA-qualifying.” In other words, FMLA requires the employer to inquire further if the employee is subject to FMLA and then require additional information. If the required notice, however, is not given, the employer can deny leave even if the employee has a serious health condition. See Aubuchon v. Knauf Fiberglass, GMBH, 359 F.3d 950, 951 (7th Cir. 2004).

Analysis

Phillips provided no specific notification to Quebecor on the “sickness” or “illness” that caused her to miss work. The only written notice she provided was from a health care provider indicating she would be absent from work; according to the court’s analysis, there was no specific disclosure of the serious health condition and Phillips’ head tumor was diagnosed only after her termination. Phillips, therefore, failed to provide adequate notice to Quebecor that she had a “serious health condition” under FMLA.

Requiring employers to determine whether leave is covered by the FMLA every time an employee was absent because of sickness places “a substantial and largely wasted investigative burden on employers” according to the court. Phillips’ request for leave, coupled with a mention of her sickness, did not “place the employer on notice of a probable basis for FMLA leave.”

The court concluded, the absence of information “regarding the nature of her medical problem” meant that Phillips’ absences were insufficient to trigger Quebecor’s obligation to inquire further. As a result, her absences could be counted under Quebecor’s no-fault absenteeism policy even if she was eventually found to have a serious health condition.

For more information on this case, or for assistance defending an FMLA case in federal court, contact John D. Finerty, Jr. at Michael Best & Friedrich LLP at (414) 225-8269 or on in the Internet at [email protected].