A recent FMLA case out of the United States District Court for the Western District of Virginia brings to mind the expression “its better to be lucky than good.” In the case of Trail v. Utility Trailer Manufacturing Company, No. 1:18CV00037 (W.D. Va. 1/8/20), a Southwest Virginia manufacturer succeeded in getting a former employee’s FMLA lawsuit dismissed after the employee failed to provide evidence that his son’s medical problems rose to the level of a “serious health condition” under the FMLA.
Taylor Wayne Trail was fired from his job as a welder with Utility Trailer Manufacturing after he left his shift early to be with his wife and son, who was being treated for vomiting and a rash in a hospital emergency room. Trail told his supervisor that “his child was going to the hospital,” and then left work for the day. Although Trail was eligible for FMLA leave, his employer took the position that the absence was not FMLA-protected. Significantly, the company did not ask for any documentation of Trail’s son’s illness, nor did it request any additional information from Trail to determine if the condition may qualify as a serious health condition.
Judge James Jones of the United States District Court for the Western District of Virginia, Abingdon Division, found that the company had not complied with its obligations under the FMLA. Noting that “[i]ts rush to terminate was ill advised,” Judge Jones found that the company had not met its obligation under 29 CFR §825.302 to ascertain the details of an employee’s request for leave when the employee tells the employer enough to raise the possibility that the leave may be protected by the law. Quoting the United States Court of Appeals for the Fourth Circuit’s decision in Krenzke v. Alexandria Motor Cars, Inc. 289 F. App’x 629,632 (4th Cir. 2008), “[t]he employer has the duty to elicit the details required under the FMLA.”
Despite the company’s failure to inquire about the details of the son’s illness, Judge Jones nevertheless granted summary judgment in favor of the employer. The reason the court dismissed the suit is that Trail had failed to supply evidence that his son’s condition resulted in “a period of incapacity of more than three consecutive, full calendar days,” as required 29 CFR §825.115(a). The facts in the record showed only that the child had a rash for two days before being seen by a doctor, and that he “got better … probably two or three” days after taking antibiotics. On these facts, the court found that Trail had not met his burden of proving that he was entitled to FMLA leave.
So what is the take-away? For employers, this case is a reminder that while you may sometimes get lucky, you should generally try to follow up and get more details about the reasons for an absence before terminating an employee for excessive absenteeism. Once an employer is on notice that an employee was absent for health-related reasons (either for themselves or a family member), the employer should seek more information about the reason for the absence to determine if it is FMLA or ADA-protected. The employer should proceed with the termination only if the employee fails to cooperate in providing more information, or if the information obtained from the employee shows that the absence is not protected by state or federal law.