Last month, the Sixth Circuit Court of Appeals affirmed the
dismissal of an employee’s FMLA interference claim when she was fired after
missing work for three weeks because of an upper respiratory infection during
the COVID pandemic after her physician had advised her to stay home for 10 days
and the Health Board advised her to self-quarantine because she had been
exposed to COVID. Nuttal v.
Progressive Parma Care Center LLC, No. 21-4199
(6th Cir. 7/26/22). The Court excused the employer’s failure to
provide her with new FMLA eligibility or designation notices and concluded that
she could not show interference with FMLA leave because she had not given her
employer notice that she suffered from a serious health condition that incapacitated
her or required continuing care from a physician by simply referring to her physician’s
direction or the isolation order. She
had never been incapacitated and did not require continued medical care. She had already been provided with eligibility
notices with prior FMLA requests within the year and her eligibility had not
changed. A designation notice was not
required until she provided a medical certification, which was never received. Because she had already been on notice of her FMLA
rights and obligations, she could not show that she had been prejudiced by the
lack of a designation notice. Interestingly,
the Court never addresses the Families First Cornavirus Relief Act and how notice
of an isolation order could trigger the FMLA.
According to the Court’s opinion, in March 2020, the
plaintiff developed an upper respiratory infection after being exposed to COVID. Her physician advised her to remain home for
10 days and the Board of Health directed her to remain home until she had been
symptom free for 72 hours and 1 week after symptoms first appeared. She immediately notified her supervisor that
she needed time off work. She advised HR
a few days later and was directed to use her accrued vacation and then apply
for unemployment. In early April, she
asked her physician to send HR a letter about needing to remain home, but it
was apparently never sent. She continued
to keep her employer informed and expressed concern about contracting COVID and
her hesitancy to return to work. On
April 17, she was released to return to work and immediately informed her
employer, which had already posted her job and told her that she was no longer
needed.
The plaintiff filed suit on the grounds that the employer never
provided with her the required FMLA notices and interfered with her FMLA leave. The trial court found that the plaintiff had
not given adequate notice of her intent to take FMLA leave, that the employer
provided required notice and she could not show the failure to provide an additional
notice interfered with her FMLA leave.
The Sixth Circuit focused exclusively on the regular FMLA
regulations and never cited to the Families First Cornavirus Relief Act, which
was enacted by March 19, 2020:
A “serious health condition” is an illness that involves “continuing treatment by a health care provider.” 29 U.S.C. § 2611(11)(B). Illnesses like the common cold and the flu, which can be treated with bed rest, fluids, and over-the-counter medication, generally do not qualify as serious health conditions. 29 C.F.R. § 825.113(c)–(d). “Calling in ‘sick’ without providing more information will also not be considered sufficient notice to trigger an employer’s obligations under the Act.” Id. § 825.303(b).
The plaintiff alleged that she had been her employer on notice
when she texted her supervisor that she had been directed by her physician to
quarantine for two weeks, sent a copy of the Health Board’s isolation order and
provided her physician’s contact information in case HR required more
information.
But she told them nothing about the severity of her illness—which in fact did not require continuing treatment by her doctor. See id. § 825.115(a)(1). . . . . . In short, Nuttall gave no indication that she sought time off because she had a serious health condition that incapacitated her. She thus cannot make out a prima facie case that Parma Care Center interfered with her rights under the FMLA.
As for the lack of eligibility notice, she had already been
sent two such notices within the prior 12 months and her eligibility had not
changed. “When ‘an employee provides
notice of a subsequent need for FMLA leave’ within 12 months ‘due to a
different FMLA-qualifying reason, and the employee’s eligibility status has not
changed, no additional eligibility notice is required.’ Id. § 825.300(b)(3).” However, the employer apparently never notified
her with 12-month period it was using – meaning that she was entitled to rely
on the 12-month period most advantageous to her under 29 C.F.R. § 825.200(e). Since a new calendar year had started since
her last FMLA request, she asserted that a new eligibility notice was required
because she would have provided the medical certification form if it had ever
been requested.
The Court was unimpressed.
It concluded that the prior FMLA notices had adequately informed
her of her rights and obligations:
[She] has not presented evidence that a FMLA notice in 2020 would have made a difference. Her choice in 2019 to fill out the FMLA paperwork—even though she states she did not ultimately take FMLA leave—is evidence that she knew her FMLA rights and the FMLA process. And without taking FMLA leave in 2019, no 12-month period could start, so the calculation method chosen by Parma Care Center is irrelevant. Simply put, [her] failure to provide evidence that Parma Care Center’s lack of notice in the 2020 calendar year precluded her from completing the same paperwork again for her respiratory illness is fatal to her claim. Her knowledge of her FMLA eligibility in 2019 precludes the possibility of harm, even if the center had to provide notice.
Because Nuttall cannot prove that Parma Care Center’s alleged lack of notice actually caused her harm, she cannot prove yet another one of the elements needed for a prima facie case of FMLA interference, and her claim fails. We need not address the other elements.
The Court never indicates why the FFCRA did not apply in
this case and it seems likely that the employer was a large employer with over
500 employees.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
