According to the Court’s opinion, the employee’s health had
deteriorated, but she transferred to a new department with a strict attendance
requirement. When she was coached about
her attendance, she apologized for “slacking.” Her medical condition caused significant
weight loss, stomach problems and interfered with her sleep. When her physician discontinued a narcotic
drug, she experienced severe withdrawal symptoms. Sometimes, she just sat in the employer’s
parking lot and cried instead of going into work and other times she reported
to her desk and cried. She told her
supervisor on Monday, August 6, 2007 that she was having personal problems
because of her “past/baggage/history,” but wasn’t comfortable going into
detail. He encouraged her to be open and
offered to find someone with whom she was comfortable speaking. She then called off work for the rest of week,
which made her supervisor suspicious that she knew in advance that she would be
sick for the rest of the week. He
directed her to meet with him promptly when she reported to work the following
week.
She was 90 minutes late to work the following Monday. After she was then 30 minutes late the
following Tuesday, the supervisor refused to accept her apology or explanation. Instead, he gave her a written verbal warning
about her repeated poor attendance. A
meeting was held with HR the next day (Wednesday) and the employee attributed
her problems to getting her child off to school. However, she also mentioned that she was
having trouble with adjustments in her medication. She was given the options of coming to work on
time, taking medical leave or going through the disciplinary process. She then met with her doctor who was
concerned with her condition and gave her a medical statement covering the prior
week’s absence and indicating that she needed to be off work for two more weeks
before being reassessed. She returned to
her supervisor, who arranged a meeting with inhouse legal counsel. He gave her blank FMLA forms and she was
verbally directed to return them within 15 days. The forms stated in part:
that “Family Medical Leave is not automatic” and that
“[q]ualification under FMLA will be determined upon timely receipt of the
medical certification form (within 15 calendar days) if requested,” . . .
(emphasis added). In addition, the form
stated that “[w]hether your absence is FMLA will be determined upon timely
receipt of the medical certification.” .
. . However, the forms were left unmarked. Moreover, the memorandum that [the
supervisor] gave [the plaintiff] on August 15 to sign stated: “consider taking a
period of time for medical leave until such time as [you] feel[] capable of
adhering to the attendance policy and completing [your] work tasks . . .There
is no mention of the need for medical certification or the consequences of
failing to produce it.
The plaintiff returned to her physician and he promptly completed
the FMLA forms. He also provided her a
note that she should remain off work for an additional three weeks. She never returned the FMLA forms or the
updated doctor’s note to her employer. She later explained that she was experiencing
extreme disappointment and was not herself.
She was later diagnosed with depression and ADHD. When she did not return the FMLA forms or
return to work on August 30, her supervisor tried for two days to reach her by
telephone and email. Her line was always
busy and she did not respond to the emails warning her of the consequences of
not keeping him updated about her medical progress. The following Tuesday, the plaintiff left a
voice mail for HR that she was on her way to the hospital for ear surgery, but
her employment was terminated later that day despite that information. When she received the termination notice, she
telephoned the company’s General Counsel that she had the completed medical
certification form, but was told it no longer mattered. At trial, the plaintiff testified that she
would have turned in the medical certification form if she had realized the
consequences of failing to do so.
On appeal, the Sixth Circuit found that plaintiff need only
provide notice of her need for FMLA leave.
She is not required to mention or refer to the FMLA and she is not
required to mention the possible duration of the medical leave. The plaintiff mentioned the problems with the
adjustment in her medication and provided her employer with a note from her
physician about her need to be off work for two weeks before being reassessed, so
she provided sufficient notice of her need for FMLA leave. The
Court rejected the employer’s reliance on the two-week period in the physician’s
note:
By focusing on whether [the plaintiff] provided enough
documentation for continued leave, [the employer] misses the point of this
notice element. The relevant question is whether [the plaintiff] provided [the
employer] notice that she needed FMLA leave, not whether she provided notice
that she needed a certain amount of FMLA leave.
Granted, “in an ideal world,” the plaintiff would have
provided her employer with the updated physician’s note indicating a need for
an additional three weeks of medical leave.
However, since his prior note referred to a “reassessment” the jury could
reasonably conclude that the two weeks were merely an estimate and that the
plaintiff could not return to work before being cleared by her physician.
Being on notice of her need for FMLA leave, it was up to the
employer to take action to obtain any necessary information it required about
the duration of her leave and any medical certification. The Court found that the FMLA forms which the
employer provided to the plaintiff on August 15 were not clear about there
being any consequences if she did not timely complete and return the forms. There was no unequivocal statement that her FMLA
leave could be denied or delayed if she failed to return the forms. It was irrelevant that she had been verbally
instructed to return the forms within 15 days because the FMLA regulations
require the warning to be in writing. Without such written notice to the employee
about the consequences of failing to timely return the medical certification,
the employer cannot deny or delay FMLA leave based on a failure to provide medical
certification. Accordingly, the
plaintiff could not be fired not returning the medical certification. In other words, she had begun her FMLA leave
on August 16 and the employer terminated her during the FMLA leave because it
could not object to the lack of information.
[Her] failure to report for work—and her subsequent
termination—is a direct result of failing to perfect her FMLA leave, which is a
consequence of [the employer] failing to meet its responsibilities under §
825.305. . . .
. . .
[The employer] claims that it terminated [the plaintiff’s] employment
because she was absent—without a valid excuse—for two consecutive days, but the
reason her absences were unexcused was because [she] failed to perfect her FMLA
leave. The reason she failed to perfect her leave was because she failed to return
the medical-certification form, and the reason she failed to return the form,
according to the jury, was because [the employer] failed to inform her of the
consequences of failing to do so as required by 29 C.F.R. § 825.305. Thus, [the
employer’s] failure to provide notice was the proximate cause of her termination,
meaning that its failure to comply with the regulations prejudiced [her].
The Court
rejected the employer’s argument that it was the plaintiff’s mental illness –
and not its failure to comply with the FMLA notice regulations – which caused
the plaintiff to fail to return the medical certification forms. “In
making this argument, [the employer] disregards § 825.305’s equitable-tolling
provision, elevates its attendance policy over the protections of the FMLA, and
oversimplifies mental illness. It is impossible to recreate how [she] balanced
her exertions in August of 2007, and if she had known that returning the certification
was necessary to keep her job, she may have rearranged her priorities in
dealing with her mental illness to comply with [the employer’s] request.”
