Request for Urgent Mental Health Break Constitutes Notice of FMLA Claim

Phoenix, AZ (WorkersCompensation.com) – When an employee who asks for time off because of a mental health or medical condition doesn’t mention FMLA, the employer should ask questions to see if FMLA might apply. The employer in Gage v. Arizona Board of Regents, No. CV-21-01589-PHX-JZB (D. Arizona 11/30/22) unsuccessfully argued that a worker didn’t tell it he was requesting FMLA leave when he asked for emergency leave because of his mental health, and then sought time off for surgery.

The employee contacted HR seeking emergency leave for his mental health on May 8, 2019. The Board denied the request. 

On June 3, 2019, he sent an email to a supervisor informing her of his upcoming surgery.

Shortly after sending that email, on June 17, 2019, the supervisor issued him a negative contract modification "due to instructions from above." The supervisor’s direct supervisor was the Executive Director of the Board.

The employee sued the Director for FMLA interference. 

The Director challenged the lawsuit in two respects, arguing that the employee failed to state a viable claim for relief, and specifically alleging that the employee didn’t give notice of his intention to take leave.

Claim for Relief

To state a claim for FMLA interference, a plaintiff must allege the following: 1) he is an eligible employee; 2) his employer is covered under the FMLA; 3) he was entitled to take leave; 4) he gave notice of his intention to take leave; and 5) the employer denied him the benefits to which he was entitled under the FMLA.

The court found that the employee’s assertions that the company denied him FMLA leave, changed his annual contract to a short-term position, put him on a corrective action plan, excluded him from a company-wide retreat, and terminated him, all because he asserted his FMLA rights, plausibly alleged an FMLA claim. Further, the employee asserted that was denied FMLA leave at the direction of the Executive Director, and that his need for FMLA leave was a factor in his termination.

The court rejected the Director’s argument that the employee failed to allege that the Director had authority or control over the FMLA process, or individually denied his request for time off. “Plaintiff alleged that [the] Executive Director and Plaintiff's direct supervisor,

influenced HR's decisions regarding medical leave … and made the decision to not renew his contract based on his need for FMLA leave,” the court wrote.

Notice

The court also rejected the Director’s assertion that the employee did not notify the company about his need for FMLA leave.

The court pointed out that to provide notice of FMLA leave, an employee merely has to tell the employer that he will be absent under circumstances which indicate that the FMLA might apply. The employee does not have to:

• Expressly assert rights under FMLA; or
• Mention FMLA

Further, it’s not the worker’s duty to clarify his request. Instead, the employer should inquire to see whether, under the circumstances, the employee needs FMLA leave. The employer also has the obligation to then inform the employee of his right to leave.

Here, the employee alleged that he informed both HR and the Executive Director of his medical issues and upcoming medical procedures. Those statements arguably should have been a red flag that FMLA might apply to the worker’s situation.

The court denied the Director’s motion to dismiss.

Compliance information from all 53 U.S. jurisdictions can be found on WorkCompResearch

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