Pension & Benefits News Triable issue on whether employee gave sufficient notice of injury to trigger employer’s FMLA duties
Thursday, April 4, 2019

Triable issue on whether employee gave sufficient notice of injury to trigger employer’s FMLA duties

By Pension and Benefits Editorial Staff

A factual dispute existed over whether an employee provided sufficient notice that he suffered an injury to his right ankle which potentially qualified him for FMLA leave, a federal court in Pennsylvania ruled in denying the employer’s motion for summary judgment on his claims of FMLA interference and retaliation. The parties gave conflicting testimony over whether his supervisor and HR were alerted that his absence might be medically related, which would have triggered the company’s duty to reach out to him to ascertain whether his absence could be covered by the FMLA, instead of firing him for violating the attendance policy.

First injury. In April 2016, over a year after the employee was hired as a waterman for the mushroom farm, he injured his ankle playing soccer. He went to work that same day, reported the injury to his supervisor, and then left to seek medical treatment. The next day, he spoke with the HR rep who handled leave requests about obtaining paperwork for his physician to complete so he could take FMLA leave. He completed the required paperwork and was approved for FMLA leave, during which time he remained in regular contact with HR.

Second injury. On November 16, several months after returning from his FMLA leave, the employee injured his other ankle playing soccer. After he awoke the next morning in significant pain, he left a voicemail for the HR director stating he would not be at work that day "because I had an accident outside of work." When the voicemail was later played to him at his deposition, he stated that he believed "there was more to it," including more information about his injury. He claimed he also attempted to contact his supervisor, but he did not answer the phone.

Conflicting testimony. He received medical care for his injury on November 17 at a hospital and on December 2 at an orthopedic clinic. After the hospital told him he had a fracture on November 17, he told his brother (who also worked on the farm as a waterman) to tell his supervisor about his broken leg. The brother claimed he informed the supervisor about the injury that day and also on November 19. However, the supervisor claimed he never spoke to the brother and never knew that the employee had been involved in an accident, sustained an injury, or that he was absent due to a medically related issue.

The employee claimed that by the Monday following his accident (November 21), he expected a call from HR and/or for FMLA paperwork to be mailed to him like when he was injured in April. Because he had left a voicemail for HR and had his brother alert his supervisor, it never occurred to him to follow up when he didn’t hear from anyone or receive his FMLA paperwork. When he later went into HR and attempted to provide his FMLA paperwork, the HR director refused to accept it, telling him that he had been terminated due to his failure to call in his absences for more than three days, in violation of the attendance policy.

Did he provide sufficient notice? Because it was undisputed that the employee did not take FMLA leave for his November 2016 injury, at issue whether he provided the employer with sufficient notice of his need for FMLA leave. If so, he invoked his right to FMLA leave and was denied benefits to which he was entitled by not being provided the appropriate paperwork. But if he did not provide sufficient notice, his FMLA interference and retaliation claims failed. Because reasonable jurors could disagree about when—if at all—the employer learned that his absence from work was medically related, thereby triggering its duty to reach out to the employee to determine if FMLA benefits would be applicable, a triable issue existed.

Employee provides evidence that he did. The employee testified that he provided enough information to put the employer on notice of his need for FMLA leave. First, he pointed to his voicemail to the HR director, telling her that he would not be coming into work due to an accident. He also claimed that he relied upon his brother’s communications with their supervisor about his injury on at least two occasions. Finally, he noted that when he was injured in April, a member of HR reached out to him with FMLA paperwork. He expected the same thing to happen with his November injury.

Employer provides evidence that he did not. The employer disputed that he provided it with enough information to reasonably ascertain that his "accident" might be covered by the FMLA. It first asserted that his voicemail to the HR director, stating the he’d "had an accident," did not sufficiently apprise it of his potential need for FMLA leave. Rather, this notice was patently deficient because it failed to communicate the basis for needing leave, or indeed, any information at all about the underlying medical condition.

Additionally, the company contended that although the employee argued that he believed he said more in his voicemail, his recollection could not by itself call into question a recorded message, the authenticity of which had been sworn to by the employer’s IT director. Finally, the company argued that his voicemail did not comply with the attendance policy because it didn’t include the requisite level of detail and that his belated argument that his brother informed their supervisor about the nature and extent of his injury was a clear fabrication and deficient as a matter of law.

SOURCE: Villagomez v. Kaolin Mushroom Farms, Inc., (E.D. Pa.), No. 2:17-cv-03929-CDJ, March 15, 2019.

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