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What happens when a registered nurse, who takes intermittent FMLA leave for her migraine headaches, has a such a bad one that it causes her to fall asleep at work? Can the company fire her? Will that violate the FMLA? Who wins this head-on collision?

Will Eric stop asking questions, and just answer them already?

In Lasher v. Medina Hospital, the plaintiff asserted FMLA interference and retaliation claims.

No pretext = no retaliation.

To resolve the retaliation claim, the court applied what’s known as a burden-shifting test. Ultimately, it is the plaintiff’s burden to show that the defendant’s reason for firing her — here, sleeping on the job — is pretextual. Unfortunately for the plaintiff, she could not punch any holes in the defendant’s honest belief that the plaintiff had violated work rules by sleeping on the job. (The plaintiff didn’t help matters by Facebook messaging a co-worker, “I feel like I may get in a lot of trouble for this.”) Additionally, the plaintiff could not demonstrate that the defendant treated another non-FMLA user better than she was treated. Finally, the plaintiff failed to produce any other evidence (e.g., comments or documents reflecting retaliatory animus) to show pretext.

No notice = no FMLA interference.

On her FMLA interference claim, the court concluded that the plaintiff failed to give notice of her intent to take intermittent leave when she succumbed to the migraine and fell asleep. Indeed, with the benefit of hindsight an FMLA lawsuit, we know now that the plaintiff’s serious health condition caused her to leave a patient, go into another room, and fall asleep. However, the onus is on the employee to provide notice of the need for FMLA. Here, at various points before the sleeping incident, and then between the sleeping incident and her subsequent termination, the plaintiff had the chance to tell her employer that she needed FMLA. But, she never did. Therefore, without any form of notice — even after the fact — the defendant could not have knowingly denied her leave.

Employer Takeaways.

1. So long as an employer honestly believes that an employee violates work rules, it can discipline that employee without risking an FMLA retaliation claim. Well, let me clarify. The employer may face a claim. But, the employer should prevail.
2. Employees must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable. When 30 days notice is not possible, like here, the employee must provide notice as soon as practicable and generally must comply with an employer’s normal call-in procedures. Otherwise, the company does not need to provide FMLA leave.