As we polish off the last of the Thanksgiving turkey, we’re reminded that for some, particularly those suffering from holiday-triggered depression and Seasonal Affective Disorder, the holiday season can induce a psychological decline that leaves them unable to work. And as a recent federal appeals court ruling points out, this decline may trigger FMLA rights, even if the affected employee never specifically asks for leave.
On November 12, 2019, in Valdivia v. Township High School District 214 the Seventh Circuit Federal Court of Appeals in Chicago upheld a jury verdict against the district for its interference with administrative assistant Noemi Valdivia’s FMLA rights. The district’s unlawful interference took a common, and avoidable form – Valdivia’s supervisor, Principal Angela Sisi, failed to tell Valdivia about her FMLA rights after Sisi noticed Valdivia exhibiting signs of mental deterioration and difficulty working.
As a consequence, Valdivia quit and sought treatment. Valdivia’s doctor diagnosed her with “major depressive disorder, single episode, severe, and generalized anxiety disorder.” The court upheld the jury’s determination that Valdivia’s behavior put Sisi on sufficient notice that Valdivia needed FMLA leave, and that Sisi violated the FMLA by not acting on that notice to educate Valdivia of her right to take FMLA leave.
By its ruling, the court offers several timely FMLA lessons for the holiday season and beyond.
Employees May Be Entitled to FMLA Before Ever Seeing a Doctor
Often employers falsely believe that an employee’s FMLA rights, in connection with their personal ailments, don’t trigger until they seek medical treatment. This may stem from the language in the FMLA statute itself.
The FMLA provides that an employee is entitled to FMLA leave if they are afflicted with a “serious health condition” and that condition makes them unable to perform the essential functions of their job. The FMLA defines a “serious health condition” to be an “illness, injury, impairment or physical or mental condition that involves (a) inpatient care in a hospital, hospice, or residential medical care facility; or (b) continuing treatment by a health care provider.”
On the surface, this language seems to imply that a condition qualifies for FMLA leave only after treatment commences. But in the Valdivia case, the court ruled that Valdivia suffered an FMLA-qualifying condition during her employment based on the treatment she received after she resigned.
Shortly after she left her job, while she was experiencing symptoms identical to those she had described to her boss, Valdivia was hospitalized for four days. “Extrapolating from that hospitalization,” the court wrote, “the jury could conclude that while Valdivia was employed by the district, she had a “mental condition” that involved “inpatient care in a hospital.” The court also concluded that the jury was justified in concluding the same condition prevented her from performing her job before her resignation.
The takeaway: “[A]n employee does not need to be diagnosed during [their] employment [to be qualified for FMLA leave], as long as the [serious medical] condition existed [during employment].”
Employees Don’t Always Need to Ask for FMLA Leave to Trigger the FMLA Process
Another common mistake an employer makes is waiting until employees ask for FMLA leave before notifying them of their FMLA rights. This mistake is highlighted in Valdivia.
Once an employer learns that an employee may be eligible for FMLA leave, the employer must provide the employee with a Notice of Eligibility and Rights and Responsibilities. The employer typically learns of an employee’s FMLA leave request when the employee specifically asks for FMLA leave, but as Valdivia reminds us, an employee’s direct request is not always required; an employee may, depending on the circumstances, “constructively” notify their employer of the need for leave through conduct alone.
In Valdivia, for instance, the court held that Valdivia’s conduct alone, all of which emerged suddenly after years of sterling work performance and included profuse crying, late arrivals, early departures and inability to finish tasks, could have put her employer on notice of her need for FMLA. She also told her manager repeatedly that she was feeling overwhelmed and confused, had lost weight, was not able to sleep, was not hungry and didn’t know what was happening to her.
The takeaway: an employer can, under certain circumstances, unlawfully interfere with a worker’s FMLA rights when it witnesses conduct that indicates an employee may be suffering from an FMLA-qualifying serious medical condition, and thereafter fails to start the FMLA process.
Nothing Beats a Well-Trained Manager Fluent in FMLA
Perhaps the key lesson from Valdivia is that supervisors and managers need regular training on an employers’ FMLA obligations and their personal responsibility to ensure that those obligations are fulfilled.
The FMLA has been in effect for more than 25 years, yet it remains all too common for managers to be unaware of their obligation to watch for, and respond in time to, signs that employees need leave. This problem is often worse where employers outsource the leave administration process to third parties. Outsourcing this vital function can lead managers to assume that leave administration is no longer their responsibility.
Until employers regularly train managers on their FMLA responsibilities, cases like Valdivia are likely to reoccur.
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Gary Savine is an Illinois employment lawyer and founder of Savine Employment Law, Ltd. in Chicago. Gary counsels employers and provides workplace training on various employment laws.