Employees and their duty to provide adequate notice under FMLA

By | February 7, 2008

Elizabeth Rask worked as a patient care technician for Fresenius Medical Care North America in Minnesota. Rask’s employment was terminated following a series of disciplinary and attendance problems culminating in her not showing up for work on May 28, 2004. Rask had a history of depression. She brought suit against her former employer claiming that some of the days she missed were FMLA qualifying due to her depression.

According to FMLA regulations, notice must be given “as soon as practicable,” but “the employee need not explicitly assert rights under the FMLA or even mention the FMLA” to require the employer to determine whether leave would be covered by the FMLA. 29 C.F.R. § 825.303(a),(b). Instead “the employer’s duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave.”

Because a serious health condition is a prerequisite for FMLA leave, an employee must provide information to the employer “to suggest that his health condition could be serious.”

According to the court, depression in all its forms is not always a serious health condition under the FMLA. This means that Rask had to tell her employer something beyond the fact that she suffered from depression to put them on notice of a serious health condition. Furthermore, telling her supervisors that she was having problems with her medication and might miss work as a result was not adequate notice.

The court concluded that no evidence existed in the record that Rask gave her supervisors any details about her depression, its severity, or any incapacity that it might give rise to and therefore did not put her employer on notice of her need for FMLA leave.

Rask v. Fresenius Medical Care North America, 509 F.3d 466 (CA 8 2007).

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