How much notice is enough under the FMLA? In Lichtenstein v. University of Pittsburgh Medical Center, plaintiff Jamie Lichtenstein was employed as a psychiatric technician with a spotty attendance record. While Lichtenstein was on notice of her attendance issues, she called her supervisor prior to a scheduled shift and stated:
“Currently in the emergency room . . . my mother had been brought into the hospital via ambulance, and I am unable to work today.”
The supervisor taking the call simply noted in the attendance log, "sick mom." Four days later, Lichtenstein’s employment was terminated.
Interestingly, the Court found that by notifying the employer that her mother was in the emergency room, Lichtenstein did not provide enough information for her employer to conclude that she needed leave under the FMLA.
Nevertheless, the Court also held that the employee had given the employer enough information to conclude that the FMLA may be in play. As a result, the employer had an obligation to conduct a further inquiry to determine whether FMLA leave was necessary. Because it did not, and because it shortly thereafter terminated the employee, it raised an inference that the employer took the action so as to interfere with Lichtenstein's FMLA rights.
The Lichtenstein case follows a growing line of cases that seems to put the onus on employers to ask the questions necessary to determine whether the FMLA is applicable. Surely the lesson for employers is that they have to keep in touch with employees to communicate the timing and duration of his or her absence. Employees are not required to specifically state "FMLA" as a reason for their absence. Rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play, and to inquire further if there is any ambiguity in the leave request. When there is doubt, ask the questions. And if you need help, contact us.