3rd Circuit Clarifies Notice Requirement Under the FMLA
The Legal Intelligencer
By Sid Steinberg
January 9, 2008
An employee's notice that he might need a future medical leave of absence was found sufficient to trigger the employee's rights under the Family and Medical Leave Act (FMLA) in a recent decision by the 3rd U.S. Circuit Court of Appeals in Sarnowski v. Airbrook Limousine Inc.
James Sarnowski was hired as a service manager for Airbrook Limousine in July 2001. Airbrook provides limousine, van and charter bus services in New Jersey. His evaluation in June of the following year was positive and he received a salary increase.
In October 2002, Sarnowski underwent coronary bypass surgery and was out of work for about six weeks. Shortly after his return to the workplace, Sarnowski received a written warning that his performance had reached "unacceptable levels" in the weeks leading up to and following his hospitalization and leave.
In April 2003, Sarnowski underwent a coronary angiogram that revealed additional blocked arteries. His physicians advised him that he would need to wear a heart monitor for 30 days and that he may need additional heart surgery. Sarnowski claims that he advised his immediate supervisor of this information shortly thereafter. Although Sarnowski ultimately underwent the surgery, at the time that he claims to have spoken with his supervisor, he only knew that he might need an additional leave of absence.
Within a week, Sarnowski was terminated. Airbrook claimed that the termination was for performance-related reasons. Sarnowski brought suit, claiming that Airbrook had violated the FMLA and New Jersey's Law Against Discrimination and Conscientious Employee Protection Act. The district court granted summary judgment to Airbrook on all of Sarnowski's claims. With respect to his FMLA claim, the district court found that Sarnowski was not entitled to benefits under the act because he did not submit a "formal request for leave" under Airbrook's FMLA policy. Sarnowski appealed this decision.
Interference Under FMLA
Sarnowski's claim was that Airbrook had interfered with his rights under the FMLA by terminating him after learning that he would need medical monitoring and might need another six weeks off for additional heart surgery. The court began its discussion by noting the act requires Sarnowski to have provided notice to Airbrook of his need for leave and further found that Sarnowski did not dispute this notice requirement. Rather, the court distilled the issue into whether Sarnowski's notice that he might need a future leave of absence was legally sufficient to entitle him to coverage under the act.
The Department of Labor's regulations make it clear that an employee "need not give his employer a formal written request for anticipated leave." Rather, verbal notification is sufficient: "An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under the FMLA or even mention the FMLA." Furthermore, the regulations provide that an employee may provide sufficient notice under the act "before knowing the exact dates or duration of the leave." This is so, ostensibly, the employee can schedule the future treatment so as to reasonably accommodate the needs of the employer.
Intention to Take Leave
The 3rd Circuit found that other appellate courts, including the 6th Circuit, have held that "the right to actually take 12 weeks of leave pursuant to the FMLA includes the right to declare an intention to take such leave in the future." All that is necessary is for the employee to impart to the employer information that "is sufficient to reasonably apprise [the employer] of the employee's request to take time off for a serious health condition."
The 3rd Circuit found that this liberal approach benefits "employers" inasmuch as employees will be encouraged to apprise their supervisors of an anticipated need for leave. The court noted that cases where notice has been found deficient have generally been where the employee has failed to convey the reason for needing leave, so that the employer was unable to determine that the absence from work was, or would be, due to a serious health condition.
Applying this standard to the facts, the court found that, in light of Sarnowski's chronic heart problems and his prior leave of absence for heart surgery, his notice to Airbrook that he might need additional heart surgery was sufficient to satisfy the notice requirements for the FMLA.
The sufficiency of Sarnowski's notice was the only issue addressed under the FMLA. The court noted that the parties disputed the contents of the notice and, even if Sarnowski's notice was sufficient, Airbrook would prevail if it provided a sufficient, non-FMLA reason for Sarnowski's termination and Sarnowski was unable to rebut the same.
While the facts of this particular case indicate that an employer needs to act "sensibly" when it comes to learning of an employee's potential future need for leave, it carries with it many unanswered questions and possible pitfalls for employers. In this particular case Sarnowski had a documented history of a serious health condition and claims to have provided Airbrook with a specific timeframe –– 30 days –– for his possible future leave. But what if an employee claims that he or she suffers from migraine headaches and states that "it is possible that I will need time off in the future for this condition"?
If the employee is terminated three months later for no-call, no-show, would the migraine-notice be found sufficient to protect the employee? And would any disciplinary action need to be considered through the lens of a possible FMLA interference claim once the employee provides his or her migraine notice? The parameters of the "future, indefinite notice" under the FMLA will clearly need further definition.
The case also reinforces that, while an employer may desire that an employee complete an FMLA form in order to qualify for leave, such a form is not necessary and should not be required.
SID STEINBERG is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.