Most employers know that an employee does not have to ask for Family and Medical Leave by name in order to fall under the FMLA’s protections. At what point, however, does the employee’s disclosure of a medical condition trigger the employer’s obligation to offer FMLA leave options? According to a new decision from the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina), employers have an affirmative obligation to bring up FMLA at a fairly early stage in the process.

In Hannah P. v. Coates, the plaintiff was a federal government employee who disclosed early in her employment that she had been diagnosed with depression. Several years later, her attendance began to lag, and her supervisors noted her lethargic behavior. Her psychiatrist requested a four-week medical leave, but the employer demurred, instead providing a referral to the agency’s employee assistance plan (EAP). When the attendance problems persisted, the plaintiff requested and was finally granted the leave. She later applied for a permanent position with the agency, and after she did not receive the job, filed suit under the Rehabilitation Act and FMLA.

The Fourth Circuit affirmed dismissal of all of the plaintiff’s claims except her FMLA interference allegations. The earlier disclosure of the depression diagnosis combined with her doctor’s leave request created a material question of fact as to whether the employer should have considered the leave request under FMLA and not provided the alternative EAP referral. The plaintiff did not need to demonstrate that the depression was a serious health condition under the FMLA at that stage of the process.

Many employers fail to understand that the FMLA is an entitlement statute. Once the employee qualifies or potentially qualifies, the employer must provide the leave option, even if it interferes with business operations, and even if the company believes it may have a better alternative. Once FMLA leave is exhausted, employers have more flexibility in terms of how they deal with employee attendance issues.