It is common for an employer to require an employee to provide a medical release or to submit to a medical examination before returning to work after a sickness or medical leave. Some employees contend the time it takes to complete this process amounts to involuntary FMLA leave and they should receive all benefits of the Act related to such leave. In a recent Fifth Circuit decision, the court recognized that an employer can place an employee on “involuntary” FMLA leave if the employee has provided the employer with notice of the employee’s “serious health condition,” and the involuntary nature of the leave does not deprive the employee of rights under the Act.    Willis v. Coca Cola Enterprises, Inc., 2006 WL 827359 (5^th Cir. March 31, 2006).

The facts in Willis are interesting. Willis was a Senior Account Manager with Coca Cola Enterprises. On a Monday, in May 2003, she called her supervisor and told him she would not be at work that day because she was sick. In the same conversation, she told her supervisor she was pregnant, but she did not specifically tell her supervisor she was sick because of her pregnancy.

On Tuesday, she called her supervisor to ask where to report to work, and he told her the company could not allow her to come back to work until she had a doctor’s release. Willis told the supervisor that she had a doctor’s appointment on Wednesday. Naturally, the supervisor thought Willis meant she had an appointment the next day, a Wednesday, but as it turned out, Willis did not have a doctor’s appointment until the next Wednesday. She did not call in or come to work until the next Thursday, when she learned she had been terminated for violation of the company’s “No Call/No Show” policy.

Willis brought suit for interference with FMLA rights and sex discrimination. Willis argued that although she did not request FMLA, her employer placed her on involuntary FMLA and then interfered with her rights under the Act by firing her. The court disagreed. The court found the employee did not provide enough information to the employer about her condition for her leave to qualify as FMLA leave: Willis did not tell her supervisor she was sick due to her pregnancy, but only complained she was “sick.” “A complaint of sickness will not suffice as notice of a need to take FMLA leave.” The FMLA was never triggered and Coca Cola did not interfere with Willis’ FMLA rights.

Although the facts in Willis did not trigger the FMLA, the court nonetheless recognized the FMLA can be triggered if the employer places the employee on leave and is on notice of an employee’s “serious health condition.” The court specifically stated:

“We therefore must consider a novel question for this circuit: what constitutes involuntary FMLA leave and what are the parties’ rights and obligations pursuant to this type of leave. As a threshold matter, it is not contrary to the FMLA for an employee to be placed on “involuntary FMLA leave.”

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We believe the statutory language of the FMLA and the relevant caselaw from our sister circuits require, even in the case of involuntary leave, that the employee provide sufficient notice to an employer of the need to take FMLA leave; in other words, that the employee provide notice to the employer of a “serious health condition.”