Reprinted from the May 15, 2007 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

When Employees Speak Of Ongoing Health Problems,
You Should Listen

An employee does not have to specifically mention the Family and Medical Leave Act (FMLA) or say "serious health condition" to put you on notice of the need for FMLA leave. But a simple statement such as "I'm sick" doesn't do the trick. In the gray area in between, an employee who informs you of ongoing health problems might trigger your employer's FMLA obligations.

EMPLOYEE TELLS HISTORY

Bruce Dautrive previously mentioned to his boss that he had been having health problems and was seeking medical attention, so he thought it should come as no surprise to the manager why he was turning down a transfer.

"Why won’t you take the job?" Georgia Hill asked.

"I would have limited access to a restroom, so it's not a good move for me because I have a weak bladder," Dautrive explained.

Two months later, Dautrive was out for a week. He gave Hill a doctor's note when he returned.

"I had blood work done and found out I have high cholesterol and a high PSA count," the employee said. "I have to go see a specialist."

Later in the week, Dautrive met with Hill to discuss his absences.

"Is this time off really necessary?" Hill asked.

"Yes. I've been feeling sick," Dautrive responded. "What I'm going through right now is a lot like what my brother-in-law experienced when he was diagnosed with prostate cancer."

Hill approved the request. Dautrive later took more time off to undergo a biopsy. He returned to work with instructions to avoid heavy lifting.

"I know we're supposed to talk about my work restrictions, but I feel sick, and I want to go home," Dautrive said.

"You can't go home," Hill snapped.

"I'm not going to sit here and argue with you. My health is more important than arguing with you," Dautrive shouted as he walked out.

Hill fired the employee for insubordination. Dautrive responded with an FMLA lawsuit. As it turned out, he was diagnosed with prostate cancer eight days after being fired.

HISTORY REPEATS…IN COURT

The company argued that Dautrive saying he felt sick was not sufficient notice of a serious health condition in order to qualify for FMLA leave.

A court disagreed, ruling that Dautrive had given sufficient information to notify Hill that he likely had an FMLA-qualifying condition by communicating a coherent pattern and progression of his health over a period of four months. The court noted that employers are not expected to reach back over vast periods of time to grasp at an isolated mention of illness that was reasonably banished from the employer's institutional memory. But it was not unreasonable to expect the employer to consider the employee's medical history in this case, since the same manager was involved throughout.

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