by W. Anthony Andrews (Spring 2020 Newsletter)
Employees dealing with issues of their health or their relatives’ health are entitled to job-protected leave under the Family and Medical Leave Act (FMLA). In a recent appellate decision, the court highlighted that employees are no longer necessarily required to give their employer direct notice of that need or desire in order to use job protected-leave. Employers must inform employees of their options when that need becomes evident.
In Valdivia v. Township High School Dist. 214, 942 F.3d 395 (7th Cir. 2019), the plaintiff had successfully worked as an administrative assistant for Township High School District 214 for six years. She was described as “extremely dependable,” was never disciplined, and rarely took sick days. Valdivia’s mental state began deteriorating after she received a promotion. She had trouble sleeping, eating, and staying energized. In July, her symptoms worsened to include weight loss, inability to concentrate, and exhaustion. She arrived at work late and left early because of uncontrollable crying.
Valdivia did not conceal her symptoms. In fact, she repeatedly met with her principal and recited her symptoms. She asked for a ten-month position as an accommodation but was denied. In August, Valdivia told the principal that she was considering leaving for “medical reasons.”
On August 4, 2016, Valdivia submitted her resignation letter, which she then tried to revoke. After completing her last day of work, Valdivia was admitted to the hospital for four days and was diagnosed her major depressive disorder, and single episode, severe, and generalized anxiety disorder. The doctor testified that it would be “difficult for anybody to work” with her symptoms.
Valdivia sued her employer and prevailed at trial, successfully arguing that the District interfered with her FMLA rights. The District subsequently filed an appeal, arguing that Valdivia was not entitled to leave nor had Valdivia provided the District with adequate notice of her desire to obtain leave.
The purpose of FMLA is to “entitle employees to take reasonable leave for medical reasons.” An employee is entitled to FMLA leave if (1) she is afflicted with a “serious health condition,” and (2) that condition makes her unable to perform the essential function of her position. An employee has a “serious health condition” within the meaning of the FMLA when she has “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider. (29 U.S.C. § 2611(11))
The appellate court found that Valdivia’s detailed testimony describing her condition and symptoms, combined with the testimony of her psychiatrist, was enough to find that she suffered from a “serious health condition.” In order to qualify for FMLA, an employee does not need to be diagnosed during her employment, as long as the condition existed at the time. Her evidence made it clear that her condition did not arise for the first time on the day she saw the doctor.
The court also rejected the District’s argument that Valdivia did not provide it with notice. Direct notice to an employer is not always required; an employee’s constructive notice may be sufficient. Quoting language from a previous decision, the appellate court noted that “clear abnormalities in an employee’s behavior may be enough to alert the employer to a serious health condition.” The court reasoned that it was enough that the principal knew Valdivia needed leave; she did not need to mention “FMLA” by name, nor did she need to demand its benefits expressly. Thus, the district court was correct that Valdivia’s documented abnormal behavior gave the District sufficient notice to qualify her for leave under FMLA.
Whenever an employee exhibits behavior that suggests a serious health condition, the employer should tactfully inform the employee about paid-leave options, without infringing on the employee’s privacy. Then, if the employee’s attendance or condition becomes more of a problem, employers should offer FMLA before taking other employment action. When in doubt, it is wise to call an attorney at Ottosen DiNolfo who deals regularly in this area.