One day, Brian began his usual 24-hour shift. The following morning, before he finished his shift, Henry, the supervisor, told Brian that he had to work the next 24-hour shift also. In response, Brian told Henry that he “couldn’t do it anymore” and “[t]hat I would turn my stuff in if I needed to, something like that."
Brian managed to find Sam, a coworker, to cover the second 24-hour shift. Sam told Henry that Brian was severely burned out due to the repeated 48-hour shifts and lack of downtime in between.
Henry took all this to mean that Brian was resigning — at least temporarily.
Brian called Henry later that day, and Henry indicated that he was unaware that Brian had “gotten burned out that bad.” Brian responded that he needed to speak with his wife to “figure this out.” At some point during the conversation, the term “burnout" was used, but Brian did not otherwise state that he was experiencing any mental health or other medical issues.
Due to the general nature of the conversation, Brian wasn’t sure if he should show up for his next shift. In fact, Henry discussed the situation with others, and they determined that Brian would not be allowed to return to work. The next day, Brian was contacted and told that his verbal resignation had been accepted and that he needed to turn in his company equipment.
Despite this conversation, Brian decided that he would simply return to work the next day because, otherwise, a failure to report would guarantee his termination/resignation. When he arrived at work, he was told to turn in his equipment and leave. His departure was ultimately categorized that he had resigned “not in good standing.” He sued, claiming the employer interfered with his FMLA rights.
Brian argued that his FMLA qualifying condition (or potential condition) was “burn out or chronic fatigue” and the employer knew of the detrimental effect of 48-hour shifts that could cause this condition. Knowing the hazards that went with the job, therefore, gave the employer the notice that it needed to conduct further investigation into whether Brian was entitled to FMLA leave. He admitted, however, that he never formally requested FMLA leave.
The employer argued that, aside from not asking for leave, Brian did not have a qualifying condition under the FMLA.
The court agreed with the employer, indicating that Brian did not show that he had a serious health condition that triggered the FMLA, let alone entitling him to FMLA leave. No evidence was provided that Brian had been diagnosed with any qualifying condition or, for that matter, that he had been subsequently diagnosed. Brian did indicate that he started visiting an unnamed licensed counselor after the events that led to his dismissal. This, however, was not enough. In addition, saying he was burnt out was not enough to put the employer on notice of the need for leave. Instead, even by his own admission, Brian told his employer that he intended to resign.
Before you pop the celebratory cork on this employer’s victory, remember that the FMLA does not contain any requirement that an employee be diagnosed with a serious health condition before becoming eligible for FMLA leave. In this particular case, the employee did not offer any evidence that he had been subsequently diagnosed with a qualifying medical condition, either.
Remember, too, that employees can put employers on notice of the need for leave in many ways, and the burden is on the employer to determine whether an employee's request for leave falls within the FMLA. Too often, a court ends up deciding whether such notice was legally sufficient.
While this case illustrated a good instance that the employee did not put the employer on notice of need for leave, but rather a resignation, if your particular situation is such that you are unclear as to whether an employee’s notice is sufficient, you may investigate a bit further and ask an employee specifically if he is asking for FMLA leave.
Key to remember: Employees need to give you enough information to put you on notice of the need for leave.
Blake v. City of Montgomery, M.D. Ala., No. 2:19-cv-243, October 6, 2020.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.