Another employee who claimed she was fired for taking FMLA leave has survived summary judgment.  A federal district court in Ohio confirmed that an employee’s burden of providing notice of the need for leave “is not heavy” and that an employer has the burden of clarifying any uncertainty on whether the employee intends to take FMLA-qualifying leave.  It held that the employee provided sufficient notice of her need for further leave, even though she failed to turn in a certification from her doctor (Fischer v. Cincinnati Optimum Residential Environment, Inc., February 3, 2015).

In October 2013, the employee decided to have foot surgery and told her employer that she would need time off to recover, but she did not specify a date. After her surgery was scheduled, the employee notified office staff, including the HR rep, saying she would “be on medical leave beginning 12/2/2013.”  She was given FMLA paperwork, including a certification for her doctor to complete and return.  According to the HR rep, however, it was unclear whether the employee intended to take FMLA leave (as opposed to vacation time or PTO), because she never returned the FMLA certification forms.  The HR rep, however, did not attempt to clarify or contact the employee to determine whether the leave was FMLA-qualifying. The employee was fired on December 20, after being out for a week. 

The employer argued that the employee failed to provide it with sufficient notice that her leave was FMLA-qualifying.  The court found, however, that the employee advised the company that she would take medical leave beginning December 2, and specifically raised the possibility of taking FMLA leave (prompting the supervisor to give her FMLA paperwork) - and that was sufficient to put the employer on notice that the employee sought FMLA-qualifying leave.

Rejecting the employer’s argument that it did not know whether the employee intended to take non-FMLA medical leave or FMLA leave, the court noted that the FMLA regulations place the burden on the employer to clarify any uncertainty about whether the employee intends to take FMLA leave.

In this case, the company erred when it failed to inquire further about the employee's leave.  The court also found it significant that the HR rep did not follow up to clarify whether the employee was requesting FMLA, or some other type of leave.

There were also questions as to whether the employer properly requested certification because the certification form did not state that providing a certification was mandatory (as required by 29 CFR §825.305(a)). It was also unclear whether the employer gave notice of the consequences of any failure to provide certification (as required by 29 CFR §825.305(d)).

The take away?  The burden on an employer is heavy - if an employee's leave "may" be for an FMLA qualifying reason, it behooves employers to follow up, get the facts, and make a final determination.  Sitting back and waiting for the employee to provide you with "proof" can cost you in court.

If you have questions or concerns about FMLA leave, please contact us today.