The notice requirements of the Family and Medical Leave Act continue to be a burden for employers as court decisions expand the concept. In a recent Seventh Circuit decision, the Court considered the case of an employee who, over a period of four months, provided his employer with information that the court says should have tipped off the employer that there was a potential FMLA problem at work.
The employee was developing prostate cancer during the last four months of his employment. Over this period, the employee communicated that: he was suffering from a weak bladder (which was a reason for the employee not accepting a transfer of assignment), his frequency of medical visits in testing was increasing, he had an elevated PSA (an indicator of prostate cancer), he recently had a prostate biopsy and he requested help in his work duties as a result. He repeatedly stated that he "felt sick", and he told his supervisor that he was afraid of getting prostate cancer and might commit suicide if he ended up bedridden.
At no point, however, did the employee provide his employer with a specific diagnosis, or a request for medical leave.
The court noted that the FMLA imposes a duty on the employer to conduct further investigation and inquiry to determine whether the medical condition is FMLA-qualifying once an employee informs his employer of his "probable need" for medical leave. Note in this case that the "probable need" for medical leave consisted of single statement that the employee was "sick" and "wanted to go home." The court noted that this single statement, made when the employee was already being subjected to disciplinary review, should have been considered in the "context" of the previous four months of medical activity. In other words, the employer should have connected the dots between what it knew about the employee's medical tests and visits, and his vague claim that he was ill and wanted to leave work that day.
This is fairly disturbing, given the pace with which things happen in a workplace, and the number of other actual job-related pieces of information a supervisor is expected to keep in her head at one time. Taken in isolation, the court makes a reasonable analysis, i.e., the supervisor was aware that the employee was having health problems and should have been alerted to the fact that this most recent claim of illness was probably related to the previous complaints. However, I think it's asking a little much for a supervisor on her own to keep a list of these kinds of data on an employee. Isn't that what human resources is for? There ought to be at least a requirement that the employee alert someone whose job it is to actually track his medical problems to the fact that he was having long-term medical issues. The court here, at least, seems to be imposing a requirement that supervisors keep a running log in their heads about various health problems of subordinates, so that they can immediately assess an FMLA issue when the employee ultimately gives them a relatively vague request for time off. To top things off, the court also found that the employee's vague and continuing complaints about his health were sufficient to give the employer notice for a retaliation claim.
The court did sustain the grant of summary judgment on an ADA claim in the same case because the court found that the disabling condition was not sufficient to prevent the employee from holding a wide range of jobs.
So this case has several lessons -- don't ignore continuing health complaints by your employees because you'll be held accountable for linking those to any subsequent medical problems for FMLA purposes; similarly, taking adverse action against someone who has presented you with a litany of various aches and pains over the course of several months may be an FMLA retaliation claim in the making; and disability for ADA purposes does not equal serious health condition for FMLA purposes.