7th Circuit Explains Employer and Employee Obligations under the Family and Medical Leave Act

On February 13, 2020, the 7th Circuit issued an opinion in which it explain the respective responsibilities of both employers and employees under the Family and Medical Leave Act ("FMLA").  Lutes v. United Trailers, Inc., et al., No. 19-1579 (7th Cir. Feb. 13, 2020).  The plaintiff sued under the FMLA, alleging that the defendant failed to properly notify him of his FMLA rights, and terminated his employment in retaliation for attempting to exercise his FMLA rights.  The district court granted summary judgment for the defendant.  The 7th Circuit affirmed the district court's summary judgment as to the FMLA retaliation claim, but vacated the district court's judgment on the FMLA interference claim.

The plaintiff alleged that the defendant violated the FMLA by interfering with his entitlement to leave by failing to inform him of his eligibility and rights under the FMLA.  He also alleged that the defendant terminated him in retaliation for his protected activity of exercising his FMLA rights.  To succeed on an FMLA interference claim, a plaintiff must plead and prove that: (1) she was eligible for protection under the FMLA; (2) the employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she provided notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she was entitled.  To prevail on an FMLA retaliation claim, a plaintiff must plead and prove that: (1) she engaged in protected activity; (2) the employer took an adverse job action against her; and (3) there was a causal connection between the two. 

The plaintiff contended that the defendant violated the FMLA and interfered with his rights because it did not provide him with the required FMLA leave information before he stopped reporting his absences.  The FMLA entitles an eligible employee to take up to twelve weeks of unpaid leave if the employee has a serious health condition that makes him unable to perform the duties of his position.  It is unlawful for an employer to interfere with an employee's attempt to exercise her FMLA rights.  The employer and employee have shifting responsibilities under the FMLA.  If the need for FMLA leave is unforeseeable, the employee must provide notice of her intent to take leave to the employer as soon as practicable under the circumstances.  The notice must provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.  The notice may include that a condition renders the employee unable to perform the functions of her job.  However, an employee does not need to be aware of her FMLA rights in order to invoke them.  An employee need not expressly assert rights under the FMLA or even mention the FMLA.  It is sufficient notice as long as the employee demonstrates to the employer that leave is needed.  The burden then shifts to the employer to decide whether to designate the request for leave as FMLA-qualifying.  Its decision to designate FMLA leave must be based only on information received from the employee.  If the employer does not have sufficient information about the reason for an employee's request for leave, the employer should inquire further of the employee to determine whether leave is potentially FMLA-qualifying.  The employer must notify the employee whether leave will be designated as FMLA-qualifying within five business days after the employee requested leave, unless there are extenuating circumstances.

Throughout this time-period, the employee must comply with the employer's notice requirements and procedures for requesting leave.  If an employee does not comply with the employer's leave-request requirements, the FMLA leave may be delayed or denied.  However, if the employee provides notice and complies with the employer's attendance policy, the employer's failure to timely determine whether the employee's leave counts as FMLA-qualifying may constitute an interference with the employee's FMLA rights, provided that it caused the employee harm.  

To be qualified for FMLA leave, an employee must have suffered a serious health condition.  The FMLA defines a serious health condition as an injury that involves inpatient care at a hospital or that requires continuing treatment by a health care provider, and that renders an employee unable to perform her job.  The 7th Circuit concluded that a reasonable jury could find that the plaintiff's rib injury constituted a serious health condition.

The next issue was whether the plaintiff provided sufficient notice to the defendant.  An employee merely calling in and saying that she is sick is insufficient notice to the employer that the employee may qualify for FMLA leave.  However, an employee's notice obligation is met as long as she provides information sufficient to show that she likely has an FMLA-qualifying condition.  An employee must communicate the reason for seeking leave, and not merely request leave.  The 7th Circuit concluded that there are genuine issues of material fact as to whether the defendant had sufficient notice that the plaintiff needed to take leave.

Once an employer has enough information to determine that an employee is seeking FMLA-qualifying leave, the employer must notify the employee whether the requested leave will be designated as FMLA leave within five business days, absent extenuating circumstances.  There is no dispute that the employer failed to determine and notify the plaintiff whether his leave request would be designated as FMLA leave.  Thus, the defendant could have violated the FMLA by failing to inform the plaintiff of his FMLA-leave designation.  Yet the plaintiff stopped following the defendant's attendance policy and failed to call in to report his absences.  If an employee does not comply with the employer's customary leave-request requirements, FMLA leave may be delayed or denied.  Thus, the plaintiff may also have failed to comply with his FMLA obligations.  But even if the plaintiff failed to comply with the FMLA by not reporting his absences, he did not do so until after the defendant would have violated the FMLA.  The plaintiff did not stop calling in to work until at least nine business days after he first reported his rib injury to the defendant, but the defendant was required to determine whether the plaintiff qualified for FMLA leave five business days after receiving notice of his injury.  The 7th Circuit stated that whether an employer's preceding violation of the FMLA is excused by an employee's subsequent failure to comply with his FMLA requirements, "presents an issue which merits further examination in the district court."  

The next question was whether the defendant's failure to determine whether the plaintiff's leave request counted as FMLA-qualifying interfered with the plaintiff's FMLA rights.  The plaintiff must demonstrate that he was injured by the defendant's FMLA violation.  An FMLA violation alone is insufficient to establish injury.  The plaintiff must show that he was prejudiced by the violation to be entitled to relief.  The 7th Circuit stated that it has not specifically addressed what constitutes prejudice arising from an employer's failure to provide FMLA information.  In light of decisions from other circuits as well as the regulations, the 7th Circuit ruled that if the plaintiff can show that he would have structured his leave differently had he received the proper information, he can demonstrate prejudice, and his claim may survive summary judgment.  Since the district court did not address whether the plaintiff was prejudiced, the 7th Circuit instructed it to do so on remand.

Lastly, the 7th Circuit affirmed summary judgment in favor of the defendant on the FMLA retaliation claim.  The plaintiff failed to establish any causal connection between his protected activity and employment termination.  In addition, he did not attempt to dispute the defendant's proffered reason for terminating him--he did not show up to work and he failed to report his absences.