In most situations you must notify your employer in advance of your need for medical leave.  But where you have a medical emergency – either yours or that of a family member – you can lawfully provide notice after the urgent situation has been stabilized.

The Family & Medical Leave Act (FMLA) is the law used by most employees for medical leave. In emergencies, you are only required to provide notice of your need for medical leave “as soon as practicable under the facts and circumstances.” If the medical emergency is yours and you are incapable of notifying your employer, have someone else do it.  This can be your spouse, an adult family member or another responsible person.  This can be done after emergency care is provided.  The law does not require disruption of emergency care to satisfy notice requirements.

By example, if your child has a severe asthma attack and you take him or her to the emergency room, you would not be required to leave your child in order to report the absence while emergency treatment is rendered. However, if your child’s asthma attack requires only the use of an inhaler at home followed by a period of rest, you are expected to call your employer promptly after ensuring your son or daughter has used the inhaler. It wouldn’t be appropriate to wait to see if an emergency developed later in the day.  Make the call as soon as you are reasonably able.

Do be sure your employer gets enough basic information to confirm the FMLA properly applies. Depending on the situation, this may include revealing that the condition renders you unable to perform the functions of the job; that you have been hospitalized overnight; that you or your family member is under the continuing care of a health care provider; and the expected duration of the leave.

If the emergency is not related to any prior request for FMLA leave, your first notice to the employer does not need to mention the FMLA.   But if it does relate to a prior or existing request for FMLA leave you must specifically mention either the qualifying reason for leave or the express need for “FMLA leave.”

To summarize, when dealing with a medical emergency involving you or a family member, use the following guidelines in relaying notice to your employer:

1. Give notice as soon as practical after emergency treatment has been provided or the condition is stabilized.  This can come from you if you are able or from someone acting on your behalf if you are not.
2. Use the same reporting procedure your employer requires for non-emergency requests for medical leave.  Call the designated number or HR representative if that’s the procedure, and follow up with written documentation. Follow the normal policy.
3. Be sure enough information is provided that your employer can see your leave qualifies for federally-protected FMLA leave.  Calling in “sick” without providing more information isn’t sufficient notice to give you protection under the Act.
4. Respond promptly to reasonable requests from the employer if it can’t decide from the information already given whether you’re entitled to FMLA leave. Failure to respond to reasonable inquiries regarding your leave request may result in denial of FMLA protection.

These tips will satisfy your reporting obligations under the FMLA.

Remember that your employer cannot continue to press for medical details once you’ve met the basic FMLA notice rules.  I’ve sued employers who relentlessly demanded information far in excess of anything needed.  That is just harassment.  And if your employer fires you and claims you “should have called them sooner,” contact an employee-rights lawyer and ask if the employer violated your rights.

Always ask about a lawyer’s experience and credentials when making a hiring decision.  Ask about the lawyer’s experience with the type of claim you have and how many times the lawyer has actually been the lead attorney in a trial of this kind.  “How many cases of this kind have you handled, and how can I verify that?” and “How many cases have you personally tried like this?” are two good starting points to find a genuine expert in the field.

Jim

Categories: Accommodations, Family & Medical Leave Act Of 1993, FMLA Leave, Medical Emergencies

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