A Capehart Scatchard Blog

Calling In “Sick” Is Not Enough To Invoke The FMLA

By on August 17, 2011 in FMLA with 0 Comments

Employers are somewhat behind the eight ball in the FMLA because the employee need not specifically invoke the “FMLA” in order to obtain protection under the law.  Nor does the employee have to give detailed information about health; rather, the employer has to consider whether the FMLA applies based on what the employee says is the reason for absence.  What if the employee only says “I’m out today because I am sick?” If that happens, the lesson in Collins v. NTN-Bower Corporation, 272 F.3d 1006 (7th Cir. 2001) is that this is not enough to trigger FMLA protection.

In the Collins case the plaintiff was fired when she called in sick for two days in March 1998.  She had had spotty attendance over time and her employer, therefore, took job action.  Plaintiff sued and said that her termination violated the FMLA.  She had FMLA time available to her, and she argued that her condition, namely depression, was covered under the FMLA.

There is no doubt that depression is a serious health condition under the FMLA.  The problem is that the employer had no idea that plaintiff had been treating for depression.  The court said, “Depression may meet this description, and we shall assume that Collins suffers from clinical depression, which certainly meets it– but Collins did not let her employer know the reason for her absence, and notice is essential even for emergencies. See 29 C.F.R. 825.303.  ‘Sick’ does not imply a ‘serious health condition.’”

The next issue in the case was how long plaintiff had to notify her employer that the reason for her absence was depression.  “The regulation allows notice to be delayed a day or two (an emergency may interfere with giving notice as well as with working), but Collins took much longer to let her employer know why she did not show up.”   The court said, “employers still are entitled to the sort of notice that will inform them not only that the FMLA may apply but also when a given employee will return to work.”

The analysis in this case makes sense.  The court said that the plaintiff’s depression had been chronic, developing for years.  “Once Collins knew she had a problem, she could predict that this would lead her to miss work on occasion and she could have given the notice contemplated by 825.302 long before March 1998.  Then when depression incapacitated her on a particular day she could have made clear the ‘serious’ nature of her condition by referring to knowledge already in the employer’s possession.”   Just telling an employer one is sick does not apprise the employer on the seriousness of the condition.  In this case, the plaintiff never really informed her employer of the serious health condition until the law suit was filed and that was obviously insufficient.

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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