Tardiness Is Not Notice of Need for FMLA Leave

The U.S. Court of Appeals for the Seventh Circuit rejected an employee’s contention that her uncharacteristic tardiness on five occasions over eight months was notice of a serious health condition under the Family and Medical Leave Act.

The employee in Guzman v. Brown County was terminated for attendance violations, following a written warning. At the termination meeting, she provided a doctor’s note stating that she “most probably” has sleep apnea for which she needed to be re-tested. She sued, claiming interference with her FMLA rights, specifically arguing that the employer had notice of her need for FMLA leave because of her uncharacteristic tardiness.

The Seventh Circuit noted that her incidences of tardiness were not “the sort of stark and abrupt change which is capable of providing constructive notice of a serious health condition,” while also remarking upon the fact that the employee had also provided non-medical reasons for her tardiness. Moreover, the decision to terminate was made before she provided any information about her possible sleep apnea.

Under the FMLA, the employee does not actually have to reference the FMLA or state that he has a serious health condition – he only needs to provide sufficient information for the employer to recognize that he may have a condition covered by the FMLA. While the court applied a sensible approach to the present circumstances in finding that no notice had been provided, this case also reminds employers to be thoughtful about an employee’s repeated absences for the same health-related reason.