In Phillips v. Quebecor, 450 F.3d 152 (CA 7 2006), employee’s explanation for leaving work (she was “sick”) and later submission of form indicating that she had visited a doctor did not trigger employer’s duty to inquire further as to whether absence/illness was FMLA qualifying.

Marquita Phillips worked for Quebecor World RAI, Inc. (Quebecor). Phillips had worked there since 2000 in its Brookfield, Wisconsin printing facility. Phillips was an FMLA eligible employee and had even requested and taken FMLA leave once before in 2003. For this prior leave, Phillips had completed an “Application for Family and Medical Leave of Absence” form, so she was familiar with the process.

Quebecor maintained an attendance policy and had provided that policy to Phillips. Its policy indicated that an employee with a continuing record of four to seven chargeable absences within a twelve month period is subject to termination. Chargeable absences include late arrivals, early departures, unexplained absences, and absences related to illness, injury, or non-qualifying personal reasons.

On August 1, 2003, Phillips was absent due to illness and obtained her sixth chargeable absence within a twelve month period. At that time, Quebecor gave her a final warning for habitual absenteeism. Despite this warning, Phillips was absent from work again from October 1 through October 3, 2003 for personal reasons. This absence again put her at her sixth chargeable absence within a twelve month period. Apparently the absences accumulated on a rolling twelve month period. Quebecor issued another final warning to Phillips as a result. This time the final warning advised Phillips that her “overall attendance record falls in the range we define as habitual absenteeism in Section 2.7 of the Policy” and warned that if she remained “in the range of four to seven chargeable absences during the next twelve months,” she would be subject to discharge.

Either unaware of her tenuous status or simply disregarding Quebecor’s warning, Phillips came to work on October 15 and indicated to her supervisor that she was “sick,” and left work early. Her supervisor did not inquire further about her illness nor did he request medical documentation to support her claim. Phillips did submit a form to her supervisor indicating that she was seen at the Comprehensive Health Center that day and should be off work from October 15 until October 19.

Quebecor charged her with another absence for this 3 day period. One month later, Phillips received half of a chargeable absence for being late to work. Two weeks after that occurrence, Phillips was late again and received another half of a chargeable absence.

On February 11, 2004, Phillips was absent from work, received another chargeable absence, and was subsequently terminated from her position with Quebecor. Phillips was later diagnosed as having a head tumor and sued Quebecor claiming FMLA violations. Quebecor moved for summary judgment which was granted; Phillips appealed to the Seventh Circuit Court of Appeals.

On appeal, Phillips focused on the three day absence beginning on October 15. She claimed that that was an FMLA qualifying absence and that such an absence cannot be counted against her under an employer’s no fault attendance policy. Phillips claimed she provided sufficient information to inform Quebecor that would trigger its duty to inquire into the medical reason for the absence. She argued on appeal that the magistrate erred in granting summary judgment because a genuine issue of fact existed as to the sufficiency of the notice.

The FMLA grants eligible employees the right to take leave because of a “serious health condition” that renders them unable to perform the functions of their position. The Act defines “serious health condition” as including “an illness … that involves … continuing treatment by a health care provider. Regulations promulgated by the Secretary of Labor in turn provide a definition of “continuing treatment by a health care provider” that includes, in relevant part:

A period of incapacity of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(A) Treatment two or more times by a health care provider …; or

(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.

An employee provides adequate notice to the employer by stating “a qualifying reason for the needed leave.” After an employee provides the requisite notice, it becomes incumbent upon the employer “to designate leave, paid, or unpaid, as FMLA-qualifying.” If “the employer does not have sufficient information about the reason for an employee’s use of paid leave, the employer should inquire further of the employee” as necessary to designate the leave, and may “obtain any additional required information through informal means.” If the required notice is not given, however, the employer can deny leave even if the employee has a serious health condition. The crux of Phillips’ appeal is the adequacy of the notice she provided.

When providing notice of leave, an employee is not required to “expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.” Employers are still entitled to the sort of notice that will indicate to them that the FMLA may apply. For leave to be FMLA-qualifying, it must first result from a serious health condition.

Phillips maintained that she had an illness that required continuing treatment by a health care provider and thus had a “serious health condition” according to the FMLA. She argued that was undergoing continuing treatment because of the time period of her absence and because of her physician prescribed medication on October 15.

As to her first position (that the time period of her absence alone established “continuing treatment”), the appeals court determined that the FMLA regulations still require the absence to be accompanied by either “treatment two or more times by a health care provider” or treatment resulting “in a regime of continuing treatment under the supervision of the health care provider.” So the absence alone cannot qualify the employee as receiving continuing treatment.

As to her second position (that the act of prescribing medication constitutes continuing treatment), a regulation does state that a course of prescription medication qualifies as “a regime of continuing treatment.” Despite this, Phillips did not provide any such information to her employer. Under the regulations, employees should provide notice “within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible.” Nor does Phillips set forth any extraordinary circumstances to justify not providing such notice.

Quebecor also had no notice of the head tumor as Phillips discovered it for the first time herself months after she had left her position. All Quebecor had at the time was the form Phillips submitted (stating that she had visited a health center) and her claim that she left work for being “sick.” The appeals court determined that this information did not trigger an employer’s duty to inquire further into whether the illness was FMLA qualifying. The court explained that employers do not have to shoulder the burden to investigate each and every absence resulting from illness to determine if the FMLA was invoked. Such a burden would be enormous and therefore not warranted.

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