Employee’s Statement that She Would Be Absent for “Depression Again” May Trigger FMLA
 
December 30, 2002
 

The United States Court of Appeals for the Eighth Circuit recently demonstrated how little an employee may have to do to invoke the protection of the Family and Medical Leave Act (FMLA).  The Court ruled that a worker’s statement that she was suffering from “depression again” two days before her dismissal may have placed her employer on notice of her need for FMLA leave. The court held, however, that the discharge decision did not violate the Americans with Disabilities Act (ADA). This ruling also illustrates the differences between the FMLA and the ADA and the two statutes’ treatment of workplace absences. Spangler v. Federal Home Loan Bank of Des Moines, No. 01-2476 (8th Cir. 2002).

Excessive Absenteeism Leads to Discharge

Theresa Spangler worked in the member financial services department at the Federal Home Loan Bank of Des Moines, Iowa. In 1993, she was diagnosed with dysthymia (a form of depression), and the bank gave her a six-week leave of absence to undergo treatment.

Over the next several years, Spangler developed a consistent pattern of absenteeism and tardiness. Spangler was absent for “family and medical reasons” 32 days in 1993, 17.6 days in 1994, 12.4 days in 1995, 29.3 days in 1996, and 21 days in 1997.

After Spangler missed several more days of work in January 1998, she was placed on a six-month probation. Spangler was told that if she was absent more than twice during the next six months, she would face dismissal. She completed the probationary period with two absences. During the next two months, however, Spangler had four unexcused absences and was again placed on probation.

On September 15, 1998, Spangler did not report to work, claiming she had “transportation problems.” The next day, she called in and stated she would not be at work because she was experiencing “depression again.” On September 17, the bank fired her. She sued the bank, claiming her dismissal violated the FMLA and the ADA. After the trial judge dismissed the case, she appealed to the Eighth Circuit.

Statement Placed Employer on Notice

The Eighth Circuit first addressed Spangler’s ADA claim.  It upheld the dismissal, ruling that Spangler failed to show that she was “able to perform, with or without accommodation, the essential functions of the employment position [she] holds.” Spangler’s job duties included taking daily phone calls, answering inquiries from other banks about cash services, and completing transactions in a timely manner; bank customers relied on her services for their daily cash needs. Finding that Spangler’s absences prevented her from performing these essential duties, the court concluded that her ADA claim was properly dismissed.

The Court reached a different conclusion regarding Spangler’s FMLA claim.  On appeal, Spangler argued that by telling the bank that she needed time off because of “depression again,” she placed the bank on notice that she required protected FMLA leave. She claimed that she not only informed several supervisors of her illness while employed by the bank but also specifically referred to her condition in her final request for time off.

The Eighth Circuit ruled that Spangler’s statement should be viewed “as a potentially valid request for FMLA leave.” It recognized that under the FMLA, an employer has a duty to provide leave “when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave.”  Here, the statement that Spangler had to be absent for “depression again” in light of the bank’s knowledge that she suffered from depression and knew that she had needed leave for depression in the past, may have been sufficient to put the bank on notice of her need for FMLA leave.  As a result, the Court concluded, Spangler was entitled to have a jury consider her claim. 

Significance

This ruling demonstrates a fundamental way in which an employer’s obligations to accommodate workers who are excessively absent for certain family and/or medical reasons differ under the ADA and FMLA.  In particular, while the ADA does not protect an employee who is unable to perform her essential job functions, the FMLA specifically applies to employees who are “unable to perform the functions of the position” during the protected leave period. Thus, the determination that Spangler was not qualified to perform her essential job functions under the ADA did not automatically bar her claim under the FMLA.

The Spangler decision also demonstrates how easy it is to miss a potential FMLA leave situation.  As the court reminded employers, an employee does not have to specifically cite the FMLA, or even request a specific leave, to invoke the FMLA’s protection.  Rather, any time an employee suggests that medical issues provide the basis for absences, the employer should assess whether the FMLA may apply.  Supervisors should be trained to let human resources employees know about any request for time off for a medical reason.  And human resources employees should consider not only the worker’s present request for time off but also past leaves to determine whether an absence may qualify under the FMLA.

One way to protect yourself against what happened in the Spangler case is to place an employee on provisional FMLA leave if you are not sure that an absence qualifies.  By doing so, you start the 12-week period running if the leave does turn out to qualify, but retain the right to discontinue the leave if it does not.

For more information, contact Tamra Domeyer, toll free, at 888-688-8500.

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