Auto Worker's 'Flare-ups’ Statement Gives Notice of FMLA Leave

Trenton, MI (WorkersCompensation.com) – A worker who takes intermittent leave doesn’t have to go to great pains to inform his employer each time he needs to utilize leave, as long as provided formal notice when he first requested leave.

That issue came up in the case of an auto worker who used leave for his intermittent depression in Render v. FCA US, LLC, 21-2851 (6th Cir. 06/01/22).

The assembly line worker’s employer initially granted him intermittent leave. After he subsequently used the leave several days in a row, the company fired him. The worker sued for FMLA interference and federal District Court ruled in the company’s favor.

On appeal, the 6th Circuit explained that to make out a claim for FMLA interference, an employee must show that: 1) he was an eligible employee; 2) the defendant was a covered employer; 3) he was entitled to leave under the FMLA; 4) he gave the employer notice of his intent to take leave, and 5) the employer denied him FMLA benefits or interfered with his FMLA rights.

The parties disputed whether the worker gave adequate notice when he called in sick because of unspecified “flare-ups.”

Foreseeable Leave

First, the court found that the worker’s leave fell within the foreseeable leave provision of the FMLA. Intermittent leave is treated as a type of foreseeable leave, the court stated.

“Foreseeability thus turns on whether the qualifying reason, i.e., the illness or medical condition, was foreseeable. In intermittent leave cases, the qualifying reason is known in advance, even if it is unclear when the condition will flare up and require time off,” the court wrote.

Adequacy of Notice

Second, the court held that the worker did not need to give formal "notice" every time he called in to use his FMLA leave. Rather, he needed to meet the notice requirement when he first sought approval for intermittent leave. The court held that he provided such notice when he contacted the company on Oct. 24, 2017, provided a medical certification, and specifically referenced his need for FMLA leave.

When the work later called because of “flare-ups,” the court reasoned, the worker did not need to specifically reference either the qualifying reason for leave or the need for FMLA leave, because had had already given formal notice of his qualifying condition. He merely had to advise the company of his schedule change on days when he wanted to use his leave.

On January 5, for instance, the worker allegedly said that he was "having a flare-up right now, and [he didn't] feel good at all." This was sufficient to satisfy act’s notice requirement, the court held.

Even if intermittent leave fell within the “unforeseeable” leave provision, which requires more than just "calling in sick," naming a symptom of the qualifying condition would be sufficient, the court stated. The court pointed out that the worker would have satisfied that provision as well since, when he called in sick, he used identical language found in his FMLA certification forms, which cited his need to take leave when experiencing “flare-ups.”

The court reversed and remanded the case to the District Court.

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