The Family and Medical Leave Act (FMLA) is one of the more difficult laws for employer compliance. The regulations are long and convoluted and filled with traps for employers. The record keeping is a headache. The breadth of coverage creates opportunities for abuse by employees skilled at gaming the attendance system. And now, in a case from the U.S. 11th Circuit Court of Appeals (whose rulings apply to all Georgia employers), we learn that certain aspects of FMLA entitlement must be judged in hindsight.
Weak-kneed Employee
Regina White worked for Beltram Edge Tool Supply. She first injured her knee in April 2010, about 10 months before she requested FMLA leave. At the time, an orthopedist prescribed physical therapy and told her she might need surgery if her knee remained unstable. She was able to work until December of 2010 despite her knee injury.
White stopped reporting for work on December 23, but her absences were due to other health issues. She called in to Beltram over the next few weeks and explained that she was absent because she was suffering from various maladies, including bronchitis, sleep apnea, hypertension, shortness of breath, chest pain, and anxiety.
On January 27, 2011, still absent from work, White visited her primary care physician and reported that she had fallen twice the previous weekend, re-injuring the same knee. The next day, January 28, she spoke with two Beltram supervisors. She told her direct supervisor that her “knee gave out and it was painful and [she] could [not] put any weight on it and received a referral from [her primary care physician] to go to an orthopedic physician.” She also spoke with Beltram’s executive vice president of operations and asked for FMLA paperwork. The vice president sent her a physician’s certification form and told her that it was due 15 days later, on February 12.
On February 8, White saw an orthopedist and signed a consent form for a knee operation. But she wasn’t able to complete the FMLA paperwork on that day because her regular orthopedist was taking a leave of absence himself, and she was transferred to another doctor. On February 11, one day before the deadline for returning the FMLA paperwork to Beltram, White contacted her employer, explained the situation involving the orthopedists, and asked for an extension of the 15-day deadline. She said the FMLA certification would be a couple of days late, so Beltram “grant[ed] [her] a couple of extra days . . . and . . . told her to get the form [in] as soon as possible.” The company did not give her a specific due date.
At the same time, Beltram asked White to send doctor’s notes explaining her absences since December 23. She responded by providing two doctor’s notes. On one, completed on January 18, her doctor wrote that she was “under [the doctor’s] care from 12-2-10 to 1-24-11.” The second note, completed on January 24, indicated that White would “be able to return to [work] on 1-31-11.”
On February 17, shortly after receiving the two notes, Beltram fired White because her doctor’s notes appeared to show that she was cleared to return to work on January 31 but hadn’t returned nearly two weeks later and had given no explanation for her continued absence. When the decision to fire her was made, Beltram still hadn’t received her FMLA paperwork, which was due by February 15.
White claimed she faxed the FMLA form to Beltram on February 16. The form indicated that her knee injury, the planned surgery, and her postoperative rehabilitation would make her unable to perform her job from January 28 to April 28—a period of almost 13 weeks.
White underwent knee surgery on March 7. About a year later, on March 30, 2012, her surgeon signed a letter stating that she had recovered “extremely well” from her surgery and could have returned to work on March 28, 2011, nearly a month earlier than the original estimate and well within the 12 weeks of protected leave guaranteed by the FMLA.
White sued Beltram under the FMLA for denying her leave and failing to reinstate her to her previous position. The trial court ruled that she wasn’t entitled to FMLA leave for three reasons:
- She didn’t suffer from a serious health condition.
- She didn’t give proper notice of her need for FMLA leave.
- She requested more than 12 weeks of leave.
- On appeal, the 11th Circuit disagreed with all three conclusions.
Court’s Decision
Serious health condition. In concluding that White’s knee injury wasn’t a serious health condition, the trial court considered only the documentation she gave Beltram before she was fired, which didn’t include the FMLA certification form. According to the appellate court, the question of whether an employee suffers from a serious health condition should be decided based on all the evidence, not just what’s available before the employee was fired.
The FMLA certification form completed by White’s orthopedist stated that her injury qualified as a serious health condition under the Act’s definition. In response to “Will the employee be incapacitated for a single continuous period of time due to his/her medical condition, including any time for treatment and recovery?” the doctor checked “Yes.” Because the doctor certified that she would be incapacitated for more than three days, the certification form indicated that her knee injury was a “serious health condition” involving “continuing treatment.”
Notice. Although suffering from a serious health condition is necessary for FMLA leave eligibility, it isn’t the only requirement that must be satisfied for an employee to earn FMLA leave. The employee must also give her employer notice of her need for leave. The employee’s notice must satisfy two criteria: timing and content, which differ depending on whether the need for leave is foreseeable or unforeseeable.
First, timing. If an employee’s need for leave is foreseeable, she must give her employer at least 30 days’ advance notice, unless giving that much notice is impracticable, in which case she must give only “such notice as is practicable.” If, on the other hand, the employee’s need for leave is unforeseeable, the 30-day requirement “does not apply.” Again a practical standard applies: “An employee [whose need for leave is unforeseeable] must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case.”
Second, content. As a general rule, an employee need not explicitly mention the FMLA when giving notice of her need for leave to her employer. But the FMLA and its regulations do require that the notice convey certain information. Again, the content requirement differs depending on whether an employee’s need for leave is foreseeable or unforeseeable.
If the need for leave is foreseeable, the employee must give her employer notice that is “sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and [of] the anticipated timing and duration of the leave.” If the need for leave is unforeseeable, the employee need only “provide sufficient information for [her] employer to reasonably determine whether the FMLA may apply to the leave request.”
Thus, to determine if notice is adequate, you first have to decide whether the need for FMLA leave was foreseeable. An employee’s need for leave is foreseeable if it’s based on planned medical treatment. Here, the question “Was White’s need for leave foreseeable?” can be re-framed as “Was White’s knee surgery a planned medical treatment?”
When White first injured her knee, her doctor prescribed physical therapy and discussed surgery only as an eventuality. And she was able to work for eight months despite the initial injury. Although it’s true that she knew surgery was “an option” in April 2010, she had no intention (or need) to undergo surgery until she re-injured her knee in January 2011. Her need for surgery was therefore unforeseeable.
Because her need for leave was unforeseeable, White was required to give notice only as early as was practicable, and her notice had to contain only “sufficient information for [Beltram] to reasonably determine whether the FMLA may apply to the leave request.” She fell and re-injured her knee around January 26, 2011. The very next day, she told her direct supervisor that she injured her knee, she couldn’t put any weight on it, and she had made an appointment to see an orthopedic surgeon. Giving notice the very next day met the timing standard of practicability.
And the content of White’s notice was also sufficient. She told her direct supervisor that her knee “gave out,” that it “was painful,” that she “could [not] put any weight on it,” and that she had received a referral to an orthopedic surgeon. According to the court of appeals, that was plenty of information for the employer to reasonably determine whether she may have needed FMLA leave due to a serious medical condition.
Requesting more than 12 weeks of leave. The trial court held that even if White was entitled to FMLA leave, she wasn’t entitled to be reinstated to her job because she requested more than the 12 weeks of leave guaranteed by the FMLA. Her FMLA certification form “identified [her] period of incapacity as lasting from January 28, 2011, to April 28, 2011, a period of nearly [13] weeks.” The trial court concluded that the certification form disqualified her from restoration to her former or an equivalent job. Once again, the court of appeals disagreed.
The 11th Circuit concluded that the certification form was only an estimate of the length of White’s leave. She presented evidence, after the fact, that she actually could have returned to her job in fewer than 12 weeks. About a year after her surgery, her orthopedic surgeon signed a form that retroactively cleared her to return to work on March 28, 2011—only eight weeks after the beginning of her requested leave period—because she “did extremely well in the immediate postoperative period.” Thus, the court concluded that an estimated recovery of more than 12 weeks didn’t disqualify her from eligibility for FMLA leave.
Judging in hindsight, our court of appeals concluded that White had a serious medical condition and could have returned within the prescribed 12 weeks. The court also concluded that she gave sufficient notice. The case will now go back for a jury trial. White v. Beltram Edge Tool Supply, Inc.
Making Decisions With All the Information
The court made its decision based on all the evidence, including information the employer didn’t have when it made the decision to terminate White. Beltram’s first mistake was not requiring White to submit the FMLA certification form by a specific date. Extending the deadline by “a few days” without setting an actual date eliminated its ability to rely on the certification form (or White’s failure to submit it) as a basis for making its employment decision.
Compounding that error, at the time it made the decision to terminate White, Beltram didn’t have the doctor’s exact statement as to when she could return to work. Without the certification form (or a hard deadline), the employer left itself open to changing diagnoses and prognoses.