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Does Asking For Sick Time Trigger My FMLA Rights?

by | Sep 19, 2022 | Employment Law, Family Medical Leave Claims, Federal Law Update, Firm News, Retaliation, Wrongful Termination |

What is the FMLA?

FMLA Attorney Answer: The Family and Medical Leave Act (“FMLA”) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

If you are an eligible employee, you are entitled to up to 12 workweeks of leave in a 12-month period for:

  •  the birth of a child and to care for the newborn child within one year of birth;
  • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • to care for the employee’s spouse, child, or parent who has a serious health condition;
  • a serious health condition that makes the employee unable to perform the essential functions of his or her job;
  • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”

Our medical leave lawyers have broken down various FMLA issues in several blogs. (Best Law Read: (Can I Do Other Things Besides Provide Care While On FMLA?; Can Your Employer Limit Your FMLA Leave?).

What employees are eligible under for FMLA leave rights?

Employment Lawyer Answer: To be an eligible employee, you must (1) work for a public agency or a private employer that employs 50 or more employees; (2) have worked 1,250 hours during the 12 months prior to the start of leave; and (3) have worked for the employer for 12 months.

If you meet these conditions, you will likely be entitled to FMLA protected leave. In a perfect world, you could use this leave without issue. However, readers of this blog know that employers love to find ways to squeeze every last drop of production out of their employees. Sometimes that involves interfering with their employees’ protected FMLA leave.

What is FMLA Interference?

Top Employees’ Rights Lawyer Answer: To prevail on an FMLA Interference claim, an employee must show that (1) they were an eligible employee, (2) the defendant was an employer as defined under the FMLA, (3) they were entitled to leave under the FMLA, (4) they gave the employer notice of their intention to take leave, and (5) the employer denied the employee FMLA benefits to which they were entitled Edgar v. JAC Prod., Inc., 443 F.3d 501, 507 (6th Cir. 2006) (citing 29 U.S.C. § 2615(a)(1)). (Best Law Read: What Is The Difference Between FMLA “Interference” And “Retaliation”?). Every element of an FMLA Interference claim is important. Failure to prove any one element could be fatal to your entire claim Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir. 2007); Arban v. West Pub. Corp., 345 F.3d 390, 401 (6th Cir. 2003). However, one element that often goes overlooked is the fourth element – the notice requirement. (Best Law Read: Why Having Skilled Employment Attorneys Is Critical).

How can I make sure I provide sufficient notice of my intent to take FMLA leave?

Medical Leave Attorney Answer: To help answer this question, let’s take a look at a recently decided case out of the United States Court of Appeals for the Sixth Circuit, Nuttall v. Progressive Parma Care Center, LLC. In Nuttall, the employee, Kelley Nuttall, missed work for three weeks because of a viral upper-respiratory-tract infection and exposure to Covid-19. When she tried to return to her job as an activities director at Parma Care Center, her supervisor told her that she had been replaced. She then filed a wrongful termination claim under the FMLA alleging that Parma Care Center unlawfully interfered with her statutory rights by failing to provide adequate information about her obligations.

Nuttall argued that she put Parma Care Center on notice of her intention to take FMLA leave, thereby fulfilling element four. An employee “gives sufficient notice when she provides enough information for the employer to reasonably conclude that leave is needed for a serious health condition.” Branham v. Gannett Satellite Info. Network, Inc., 619 F.3d 563, 572 (6th Cir. 2010) (internal quotation and alteration omitted). A “serious health condition” is an illness that involves “continuing treatment by a health care provider.” 29 U.S.C. § 2611(11)(B).

Nuttall argued that she sent a text message to her supervisor saying she had to quarantine for two weeks, sent an email asking if she needed any paperwork from her doctor, and separately sent an isolation order from her doctor to her employer. However, Nuttall never told her employer about the severity of her illness, which in fact did not require continuing treatment by her doctor.

Illnesses like the common cold and the flu, which can be treated with bed rest, fluids, and over-the-counter medication, generally do not qualify as serious health conditions. 29 C.F.R. § 825.113(c)–(d). “Calling in ‘sick’ without providing more information will also not be considered sufficient notice to trigger an employer’s obligations under the Act.” Id. § 825.303(b).

As such, the United States Court of Appeals for the Sixth Circuit held that Nuttall gave no indication that she sought time off because she had a serious health condition that incapacitated her. Based on this finding, the court affirmed the United States District Court for the Northern District of Ohio’s grant summary judgment against Nuttall.

Do I have a claim for FMLA interference?

If you think you might have a serious health condition that you will have to take time off work for, (1) make sure you let your employer know that you are considering FMLA leave and want information regarding your FMLA rights; (2) let them know about the seriousness of your condition; and (3) consult experienced employees’ rights attorneys with any question you have or problems that arise.  FMLA Interference cases can be complicated. There are many intricate rules and regulations to watch out for. Make sure to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our lawyers in Ohio, Michigan, and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


This employment law website is an advertisement. The materials available at the top of this FMLA Interference page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Did my employer interfere with my FMLA rights”, “Was I wrongfully terminated?”, or “What if I was never told I could ake FMLA leave?” or “I was fired after I gave HR my doctor’s note for medical leave,” it would be best for to contact an experienced attorney to obtain advice with respect to any FMLA employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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