You Make The Call: Did boss have to anticipate employee’s need for leave?

“Mae never even specifically told us that she wanted to use FMLA leave,” said Supervisor Margie Brunton. “How were we supposed to know that we had to provide her with information about her right to take leave?”

“Mae claims that her need for FMLA leave was obvious,” replied HR Manager Alan Frankel. “She says that she was suffering from severe emotional distress and that her boss must have known that she was eligible for FMLA leave based on her worsening mental condition. She’s suing us for FMLA interference because we failed to formally notify her of her eligibility for leave.”

“Oh, brother,” said Margie. “Now we’re supposed to be mind readers.”“According to Mae,” replied Alan, “we didn’t have to read her mind. We just had to pay attention to her behavior and recognize the signs that she was entitled to leave.”

“What behavior is she talking about?” asked Margie.

“Mae says her boss knew she was showing up late to work because she couldn’t drag herself out of bed as a result of her deteriorating mental state,” said Alan. “She also left work early quite a bit because she couldn’t stop crying.”

“She was coming into work late and leaving early, and that was somehow supposed to let us know that we had to tell her that she was eligible for FMLA leave?” asked Margie.

“That’s about the size of it,” said Alan.

“Mae wasn’t even fired; she quit because of high stress levels,” replied Margie. “We should fight this unjustified lawsuit.”

Did the company win?

No. The company lost. A jury awarded the woman $12,000 in damages, and a judge upheld the jury’s decision. The court ruled that the employer interfered with the woman’s right to take FMLA leave because she wasn’t given information about her leave eligibility.

According to the judge, the employer should’ve recognized that the woman was entitled to leave based on her deteriorating mental condition. The court observed that the woman frequently showed up late to work and sometimes left early in tears. Her behavior should’ve been a red flag to her boss that she was eligible for leave and that she should’ve been told about her right to take leave.

What it means: Anticipate the need for FMLA leave

While you don’t technically have to read minds, the ruling in the case means that you do have to be able to anticipate when a worker might need to use FMLA leave, and then provide the person with information about his or her right to do so.

Be on the lookout for the warning signs that someone might be suffering from a condition that could entitle him or her to leave.

Pay particular attention to previously solid performers who suddenly begin to struggle. When that happens, meet with the person to find out what’s going on. If you think that the worker might be entitled to leave, talk to your HR manager about how to provide required notifications.

Based on Valdivia v. Township High School District 214.

(From the Jan. 24, 2020, issue of HR Manager’s Legal Alert for Supervisors)