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Does Crying Put an Employer on Notice of the Need for FMLA Leave?

Posted By Cindy Hesch, Thursday, June 29, 2017

Does Crying Put an Employer on Notice of the Need for FMLA Leave?

By Lorie Birk, Esq, SPHR, SHRM-SCP

HR Law Works, LLC

While we may be crying over the continued heat, there has been an interesting case in Illinois about crying and FMLA, Valdivia v. Township High School District 214, 2017 U.S. Dist. Lexis 73647.

The story begins with Ms. Valdivia being a secretary at Elk Grove High School from May 2010 through June 2016.  Ms. Valdivia indicates that her co-workers regularly made derogatory remarks about Hispanic people and students.  As it happens, Ms. Valdivia is Hispanic and she found the comments degrading, hostile and offensive.  These comments increased in frequency in September 2014 and continued.  Ms. Valdivia complained to the principal about this and nothing was done.  In March 2016, Ms. Valdivia transferred to another school in an effort to remove herself from the hostile work environment.  These types of comments continued at her new job.  Ms. Valdivia became very distraught and began crying uncontrollably at work.  In one instance, she told her supervisor that she was overwhelmed and afraid and unsure if she could continue working.  Due to her continued concerns and distress, several individuals in leadership including her supervisor, indicated to Ms. Valdivia that she had to decide between continuing or resigning her employment.  After that, Ms. Valdivia again approached her supervisor and explained she was confused and overwhelmed, had not slept in weeks, had not been eating, and was losing weight.  Again, she was told she needed to decide between continued employment and resigning.  Ms. Valdivia does end up providing a written letter of resignation.  Five days later she tries to rescind it but the school district indicates the position has already been filled.  Less than two weeks after her resignation is effective, Ms. Valdivia was hospitalized for four days and diagnosed, for the first time, with depression, anxiety disorder, panic disorder and insomnia.  She was cleared for secretarial work by her physician after treatment.

At first you are probably thinking there is a race discrimination claim in this story.  That is covered in the case but let’s focus on the FMLA issue.  Ms. Valdivia sued for interference with her FMLA rights, in addition to violations of Title VII of the Civil Rights Act.  Ms. Valdivia argued that her supervisor and others who had known her for several years should have known she had a medical condition that made her unable to perform her job based on her behavior and what she said.  Let’s refresh our memory on what the notice requirements are for requesting FMLA.  Per the regulations an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave.  In addition, the regulations state that when an employee seeks leave for the first time, the employee need not expressly assert rights under the FMLA or even mention FMLA.  Court decisions have indicated that the notice requirement is not demanding.  The court found that there was sufficient information for Ms. Valdivia to pursue her FMLA claim as any reasonable person would conclude that Ms. Valdivia may need FMLA leave.  The court based that on not only the uncontrollable crying, but the statements that Ms. Valdivia made about being overwhelmed, confused, not having slept in weeks, not eating and losing weight.  The court stated that the fact that Ms. Valdivia was not diagnosed with a medical condition until a couple weeks after her employment ended is not relevant.

So, I do not believe crying alone puts an employer on notice.  It was that in combination with the other facts that proved to be the issue for the employer.

This case does highlight the need to train managers on not only what is FMLA but when FMLA may be triggered and what to do next.

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