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Under the Family and Medical Leave Act, an employee needs to give an employer enough information to indicate that the need for leave is related to a “serious health condition.” Both employers and employees continue to be vexed by the question of how much information is necessary and what the employer should do when it does not receive sufficient information upon which to base a decision as to whether a leave of absence is covered by the FMLA. Two recent decisions from the U.S. District Court for the Eastern District of Pennsylvania give guidance on these issues. The FMLA entitles an eligible employee to up to 12 weeks of unpaid leave per year for a “serious health condition” that makes the employee unable to perform the functions of their job. FMLA also entitles employees to reinstatement to their former position or an equivalent one with the same benefits and pay upon the completion of their leave. Employers may not deny or interfere with an employee’s rights guaranteed by the FMLA and are prohibited from discharging or discriminating against any eligible employee who exercises those rights. When the necessity for FMLA leave is foreseeable, the act requires the employee to provide their employer with at least 30 days notice before the leave is to begin. Although the act is silent on the notice required for unforeseeable leave, the U.S. Department of Labor’s regulations state that when FMLA leave is unforeseeable, the requesting employee must provide their employer with notice “as soon as is practicable.” Generally, “as soon as practicable” means no more than two days after learning of the need for the leave, although an exception is made where extraordinary circumstances prevent such notice. Employers should be cognizant that notice may be provided by the employee or by an employee’s “spokesperson” if the employee is not able to do so, and the notice can be given either in person or by telephone, facsimile, e-mail or other electronic means. While there is no precise definition as to what constitutes “sufficient” notice, the Eastern District of Pennsylvania, as well as some circuit courts, has given employers guidance on this very issue. At a minimum, an employee is required to provide his employer with enough information so that the employer can determine whether the proposed leave qualifies under FMLA. ( McCarron v. British Telcom, (E.D. Pa. Aug. 7, 2002); Price v. City of Fort Wayne, (7th Cir. 1997); Manuel v. Westlake Polymers Corp., (5th Cir. 1995) (stating that sufficient notice is given when the information provided can reasonably apprise the employer of the employee’s request to take time off for a serious health condition).) In McCarron, the plaintiff alleged that his former employer violated his FMLA rights when it terminated him while he was hospitalized for treatment of a bipolar episode. The district court granted the defendant-employer’s summary judgment motion, holding that the plaintiff failed to provide his employer with sufficient notice of his FMLA claim. The court found that McCarron’s voice mail message to his employer requesting “family leave” to deal with a “family situation” was insufficient information to allow the employer to determine whether McCarron’s requested leave qualified under FMLA. The court specifically noted that McCarron’s supervisor called him twice, leaving messages both times informing McCarron that she [the supervisor] needed to discuss his “family problem” to determine whether it qualified for FMLA leave. McCarron did not respond to his supervisor’s messages. Rather, he accumulated three days of unauthorized absences. In accordance with the employer’s policy on unauthorized absences, the defendant-employer terminated McCarron’s employment. The court ruled that McCarron’s pre-hospitalization phone message was insufficient notice to make the employer aware that his absence was due to an FMLA-qualifying reason. In order to invoke FMLA rights, an employee must show that he suffers from a “serious health condition,” which is defined as an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. While the act does not define the term “continuing treatment,” the regulations define it as “a period of incapacity – unable to work or perform routine daily activities – of more than three (3) consecutive calendar days . . . “ Employers must be cognizant of who has “certified” that the leave-requesting employee suffers from a “serious health condition.” If an employee makes a self-diagnosis, then that will call into question the employee’s FMLA leave request. Indeed, under FMLA, the only relevant opinion about whether an employee is able to work belongs to the employee’s health care provider, not the employee. (See Seidle v. Provident Mut. Life Ins. Co., (E.D. Pa. 1994) (plaintiff’s child was not incapacitated for more than three days where pediatrician told plaintiff to keep child at home for only three days and child’s day-care center prohibited child from attending on fourth day because of their own policy against admitting children with a runny-nose).) In order for an employee to show that he suffers from a “serious health condition” or is otherwise “incapacitated,” the employee must provide certification by his health care provider showing that the health care provider has determined that, in his or her professional medical judgment, the employee cannot work (or could not have worked) because of the illness. ( Brown v. Seven Seventeen HB Philadelphia Corp. No. 2, (E.D. Pa. Aug. 8, 2002); Olsen v. Ohio Edison Co., (N.D. Ohio 1997). It is not enough that an employee believes, in their own judgment, that they should not work, or even that it was uncomfortable or inconvenient for the employee to have to work. Basically, the employee requesting FMLA-approved leave must have a valid “doctor’s note” where the health care provider instructs, recommends, or at least authorizes the employee not to work for at least four consecutive days in order for that employee to be considered incapacitated. This exact issue was addressed in Brown, where Brown suffered a severe toothache with facial swelling. Brown’s dentist gave her a note confirming that he had seen her, but not indicating that she had an inability to continue working. Nevertheless, Brown allegedly called the employer’s security officer to advise that she would not be at work, as she had an appointment with her dentist. The employer denied receiving Brown’s call, and discharged her under its absentee policy. Brown then sued her former employer alleging that the employer violated her FMLA rights. The court found that, as a matter of law, Brown’s dental condition did not meet the definition of a “serious health condition” under the FMLA. Additionally, Brown presented no evidence that a health care provider determined that she was unable to work and, more importantly, that she was unable to work for more than three consecutive days. The court ruled that Brown had no evidence, other than her own self-serving statements, that she was unable to perform routine daily activities during three days off that she wanted to count for FMLA purposes. The recent decisions in both McCarron and Brown provide employers with guidance when they are faced with the situation of an employee who fails to provide them with enough information and sufficient advance notice to properly determine whether the employee is entitled to leave under the Family Medical Leave Act, or the situation where the leave-requesting employee provides the employer with a “self-diagnosis” rather than a diagnosis from a health care professional, to support their reason why they believe they are entitled to FMLA-approved leave. According the Eastern District of Pennsylvania, both situations provide an employer with legitimate, non-discriminatory reasons to deny an employee’s request for FMLA leave. Sidney R. Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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