Article by Capehart Scatchard

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 (7 ^th 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 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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