FMLA Leave – Does Believing Make It So?
Can a company be required to provide FMLA leave to an employee, even if they are not really eligible? Maybe. The normal analysis in a Family and Medical Leave Act case involves issues such as whether the employee suffered from a “serious health condition,” and gave the employer specific knowledge of their need for FMLA leave. However, under another prong of the FMLA, an employee may be entitled to leave, even if he or she did not suffer from a serious health condition: if there was a request for FMLA leave, if the employer represented that the request was approved, and if the employee reasonably relied upon the employer’s representation to his or her detriment.
The Eighth Circuit Court of Appeals, in Murphy v. FedEx National LTL, Inc., examined a situation where an employee took FMLA leave to care for her ailing husband. A week later, the employee’s husband died unexpectedly. She took three days of bereavement leave. The supervisor then called the employee, informed her that her FMLA leave had ended on the date of her husband’s death, and asked her how much more time off she needed. The employee said that she needed thirty days “to take care of things.” The supervisor responded, “Okay, cool, not a problem, I’ll let H.R. know.” The employee did not seek any additional approval or medical certification of her condition. Four days later, Murphy was terminated.
Murphy sued, alleging that her termination violated the FMLA. She prevailed after a jury trial and was awarded damages. FedEx appealed. The Court agreed with the appeal and sent it back to the trial court to be reconsidered. In doing so, it issued guidance as to when FMLA estoppel might exist.
At the outset, the Court held that an employer who makes an affirmative representation that an employee reasonably and detrimentally believed was a grant of FMLA leave can be “estopped” or precluded from later arguing that the employee was not, in actual fact, entitled to that leave.
First, the Court found that an employee must notify the employer that they may need FMLA leave. The Court noted that the employee’s request for thirty (30) days leave “to take care of things,” by itself, would be insufficient to constitute a request for FMLA leave. While it did not decide whether proper notice actually was given, it did note factors to be considered relating to FedEx’s awareness of the employee’s mental condition. More specifically, the supervisor was aware that:
- the employee’s husband, who had worked with Murphy for many years, had died unexpectedly;
- the employee was noticeably distraught during the phone conversation;
- the employee was unable to work the night shift because it reminded her too much of her husband.
The Court concluded that a jury could consider the effect that the employee’s mental state, and FedEx’s awareness of that state, had on the sufficiency of her notice. It also noted that the employee’s affirmative response to her supervisor’s inquiry about additional leave, during a discussion involving FMLA leave, could be interpreted as objectively adequate notice of the need for FMLA leave.
The remaining issue concerned whether a jury could find that Murphy reasonably believed, based on the totality of circumstances, that the employer had approved FMLA leave. The Court concluded that the statement “okay, cool, not a problem, I’ll let H.R. know,” was sufficiently definite for a reasonable jury to find that the employee satisfied that prong of her estoppel claim.
While the Court did not definitively decide the issue of whether Murphy had given the employer adequate notice of her need for FMLA leave, the Eighth Circuit’s analysis provides the clear directive that the issue of adequate notice can only be decided with respect to the totality of circumstances. The Courts have been consistent, in their conclusion that no specific language need be used and the employee need not specifically ask for FMLA leave. The decision in Murphy also underscores the necessity for providing adequate training to fully inform supervisors of the company’s procedures for considering and granting FMLA leave, and referring requests for leave to H.R., or at least stating that H.R. will make the final decision. It is clear that in FMLA leave situations, a supervisor’s loose lips can sink the employer’s ship.
