Employee Must Provide Information Sufficient to Trigger Notice of Need for FMLA Leave

The Family and Medical Leave Act (FMLA) was designed, in large part, to protect the medical needs of employees with serious health conditions.  The Department of Labor regulations, which provide guidance to both courts and companies, were revised on January 1, 2009, but continue to require that an employee provide notice of the need for leave associated with a serious medical condition.  In a recent case, decided under the “old” version of the DOL regulation, the 8th U.S. Circuit Court of Appeals upheld summary judgment in favor of an employer who had demoted an employee after the employee missed work for a claimed “nervous breakdown.”  Talmadge Scobey v. Nucor Steel-Arkansas, 8th Cir., No. 08-1192, Aug. 25, 2009.  In that case, an individual sued his employer for interference with and retaliation for exercise of his FMLA rights, claiming that he was demoted because of his attempt to obtain leave under that Act.

Talmadge Scobey began working at Nucor Steel in 1998.  Until 2005, Scobey worked as a “ladle man” in Nucor’s Hickman, Arkansas facility.  The position, which paid over $80,000, was dangerous and demanding, and included handling thousands of pounds of molten steel.  

In February, 2005, Scobey accumulated two unexcused absences.  Under the company’s attendance policy, an employee could be terminated after four unexcused absences.  On Saturday, April 9, 2005, Scobey called his supervisor, ostensibly to ask for time off work for the funeral of his ex-father-in-law, but was unable to reach that supervisor.  Scobey did not appear for work on April 10.  On April 11, he called and told his supervisor that he had “suffered a nervous breakdown,” and was “through with” the company, and then hung up with no further explanation.  During that call, Scobey’s speech was slurred and his supervisor “had the impression” that Scobey was intoxicated.  Scobey did not show up for work on April 12 or 13.  On April 14, he called Blakemore, a supervisor and a friend of Scobey’s, and told him that he couldn’t remember the past four days and “wanted some help.”  On April 15, Scobey visited a doctor, who diagnosed him with hypertension.  On April 20, Scobey was assessed by Nucor’s EAP provider, at the company’s suggestion, and entered an outpatient alcohol treatment program, which he left before completing.

On May 20, Scobey met with Nucor’s plant manager who, rather than terminate Scobey’s employment, suspended Scobey for three days and demoted him to an entry-level position.  After two weeks in that position, Scobey stopped coming to work, and subsequently sued the company for violation of the FMLA. The district court dismissed both claims on summary judgment, and the dismissal was upheld by the Eighth Circuit on appeal.

In order to request leave under the FMLA, an employee does not have to reference the Act.  However, under both the old and the recently amended regulations, the employee must do more than merely call in sick to trigger an employer’s duty to act under the FMLA.  An employee has an affirmative duty to indicate both the need for and the reason for the leave, and should let the employer know how long the anticipated leave might be.  Scobey’s case turned on the issue of whether he provided to Nucor a sufficient and timely notice of a serious health condition for his absences from April 10-13.    According to the Eighth Circuit, he did not, and was therefore estopped from claiming violation of the FMLA.  The Court made this decision based primarily on the fact that Scobey’s notice to Nucor did not include sufficient information to adequately apprise the company that Scobey’s condition might be protected by the FMLA. 

In his April 11 call, he informed his supervisor that he “was through” with the company – notice of quitting, not notice of the need for medical leave.  He was intoxicated enough to forget the next four days, and although absences for the treatment of alcoholism are protected under the FMLA, absences caused by the use of alcohol are not.  Scobey argued that his inebriated state was a manifestation of underlying depression, which should have been recognized by the company.  The Court found, however, that based upon Scobey’s apparent intoxication, his prior absences, and his shifting explanations of the reason for his absence, his phone calls were not adequate to apprise Nucor that the FMLA might apply.

Having failed to provide sufficient notice to trigger the FMLA, Scobey was unable to support his FMLA claim.  However, employers should not read this case as blanket permission to ignore incomplete or non-specific information regarding an employee’s health condition.  Had the facts been slightly different, and had Scobey suffered from depression in the past of which Nucor had been aware, or had Scobey previously provided doctors’ notes regarding the status of an ongoing depressive episode, a question of fact may have existed regarding whether Scobey’s calls constituted adequate notice of the need for FMLA leave.  Employers must recognize that these cases are very fact specific, and should review such situations carefully before making a decision to refuse a request for FMLA leave.