Disclosure Of Symptoms Held To Be Sufficient Notice Under FMLA

Court Finds Employee Provided Company With Adequate Information About His Condition

A federal appellate court recently reinstated a lawsuit brought by a worker who claimed that his former employer interfered with his right to take protected leave under the Family and Medical Leave Act (FMLA). The Seventh Circuit Court of Appeals held that the worker – who disclosed a series of health problems to his employer over a four-month period (including the need for a biopsy) – provided sufficient notice of his need for FMLA leave. Burnett v. LFW Inc. dba The Habitat Company, No. 06-1013, Seventh Circuit Court of Appeals (December 26, 2006).

Factual Background

David Burnett was employed as a “detailer” by The Habitat Company, a property management company. As a detailer, he was sometimes required to lift heavy objects. In late 2003, Burnett told his supervisor, Sergio Polo, that he was experiencing medical problems. Polo offered to transfer Burnett, but he declined the transfer given his “weak bladder” and the restricted restroom access in the new position.

In December 2003, after a week-long absence, Burnett again spoke with Polo about his health. On December 11, he gave Polo a copy of the doctor’s order for blood work to justify some of the time off. Burnett also explained that during his absence he had visited the doctor, undergone a physical exam, and learned that he had a high PSA (prostate-specific antigen) and high cholesterol.

On December 16, Burnett met with Polo and a union representative to further discuss his absences. During this meeting, Burnett told Polo that he had been “sick” during his week-long absence. He also named the probable source of his illness by comparing his circumstance with that of his brother-in-law, who had been diagnosed with prostate cancer. Polo approved Burnett’s request for sick leave on January 6 and 8 to attend doctor’s appointments.

In early January, Burnett requested leave to undergo a prostate biopsy. He gave documentation describing the procedure to a different supervisor. Over the next week, Polo issued Burnett several written reprimands for “substandard work” and disruptive behavior. Burnett filed a union grievance and, on advice of the union, did not return to work until January 26 (which was the day set for the grievance meeting). At the meeting, Burnett told Polo that he was scheduled for a biopsy the next day.

After the biopsy, Burnett provided his employer with a “Treatment Plan” which instructed him to avoid heavy lifting or strenuous activity. Over the next two days, Burnett submitted vacation requests for the first and second weeks of February. At a meeting on January 29 with Polo, Burnett stated that he felt sick and wanted to go home. Burnett left for the day and was terminated effective January 30 for insubordination. He was diagnosed with prostate cancer on February 2.

Burnett sued Habitat alleging violations of the FMLA (among other claims). The trial judge dismissed the suit, concluding that Burnett failed to provide his employer with notice of his medical condition as required by the FMLA. Burnett appealed this ruling.

Legal Analysis

The Seventh Circuit first noted that an “employee’s notice obligation is satisfied so long as he provides information sufficient to show that he likely has an FMLA-qualifying condition.” The court acknowledged, however, that “an employee’s bare assertion that he is `sick’ is insufficient.”

Habitat argued that Burnett’s remark that he felt sick and wanted to go home on January 29 was insufficient notice of his need for leave. In rejecting the employer’s position, the court wrote: “This argument effectively disregards the surrounding context of Burnett’s remarks.” Over a four-month period, the court noted, Burnett’s communications included statements about his “weak bladder,” frequent doctor’s visits (including a biopsy), and equating his condition to his brother-in-law’s prostate cancer. Because “Burnett’s declarations . . . were more than a vague and untethered claim of sickness,” the court reinstated his FMLA claim.

Practical Impact

According to Brian McDermott, a shareholder in Ogletree Deakins’ Indianapolis office: “This ruling demonstrates that leave issues continue to pose problems for employers. Specifically, the court in this case found that various statements made by the employee were sufficient to place the employer on notice. To limit or avoid such claims, employers must pay attention to employee communications about the need for leave and the relevant context, be consistent in their approach to leave issues, and retain proper documentation to justify employment decisions that may be questioned in the future.”

Note: This article was published in the Dec/Jan 2007 issue of The Employment Law Authority.