Verbal Notice Sufficient To Relay Intent To Take FMLA Leave

Court Reinstates Worker’s Interference Claim

A federal appellate court recently reinstated a lawsuit brought by an employee who claimed that his termination violated the Family and Medical Leave Act (FMLA). According to the Third Circuit Court of Appeals, the employer had sufficient notice of the employee’s intent to take leave to create protection under the FMLA. Sarnowski v. Air Brooke Limousine, Inc., No. 06-2144, Third Circuit Court of Appeals (December 12, 2007).

Factual Background

Air Brooke Limousine (ABL) hired James Sarnowski in July 2001 as a service manager. His initial performance evaluations were very good. In June 2002, he received a favorable review and a salary increase.

Sarnowski suffered from Coronary Artery Disease and Wolff-Parkinson-White syndrome. In October 2002, he underwent quintuple coronary artery bypass surgery. He was hospitalized for one week and remained out of work for approximately six weeks.

In December 2002, Sarnowski received a written warning regarding his work performance. He was urged to improve his performance and to speak with his supervisors regarding any problems.

The following spring, a coronary angiogram revealed four more blocked arteries. Based on his doctor’s orders, Sarnowski claimed, he advised his supervisor of his need for monitoring and possible additional surgery. According to Sarnowski, he conveyed what information he had and made it clear to his supervisor that his health problems were continuing.

On April 15, 2003, eight days after Sarnowski allegedly spoke with his supervisor regarding his health problems, his employment was terminated. ABL claimed that Sarnowski was terminated for performance-related reasons.

Sarnowski filed suit alleging that his termination violated the FMLA (among other claims). The trial judge granted summary judgment to ABL on all claims and Sarnowski appealed to the Third Circuit Court of Appeals.

Legal Analysis

The issue on appeal was whether the notice Sarnowski did provide was legally sufficient to entitle him to protection under the FMLA. The regulations interpreting the FMLA provide that an employee need not give his employer a formal written request for anticipated leave. The regulations further state that simple verbal notification is sufficient.

To determine whether Sarnowski provided his supervisor with sufficient notice under the FMLA, the court relied on the following standard: “[T]he critical test for substantively-sufficient notice is whether the information that the employee conveyed to the employer was reasonably adequate to apprise the employer of the employee’s request to take leave for a serious health condition that rendered him unable to perform the job.”

Based on the facts in this case, the court concluded that ABL had sufficient notice of Sarnowski’s need for leave to satisfy the FMLA’s notice requirement. The court noted, however, that it was not ruling on whether his termination did in fact constitute prohibited interference. “It will be for the trier of fact to resolve this dispute,” the court wrote.

Practical Impact

According to Patrick Stanton, a shareholder in the firm’s Morristown office: “As demonstrated by this case, even general statements of future intent to have a medical procedure may give rise to FMLA protections. Thus, it is important that supervisors keep a vigilant ear to recognize and respond to potential leave situations. Management must be trained to be aware not only of statements by employees but also of their actions. Depending on the context of the employee’s comment, further inquiry may be warranted.”

Note: This article was published in the January/February 2008 issue of The Employment Law Authority.