Counsel for a former Pennsylvania juvenile probation officer who alleged that the state fired her in violation of the ADA and FMLA for not giving enough notice of her leave to undergo IVF told the Third Circuit that texting her supervisor a few days prior to the treatment was adequate notice for her employer to accommodate her leave. The employee had found out on June 5, 2017, that her embryo transfer would take place five days later. She texted her supervisor the same day and requested leave the following day. The employer fired the employee after she took the leave. The employee then sued, alleging that the employer was required to provide the leave for the employee’s IVF embryo transfer, in accordance with the FMLA and ADA.
In court, the employee argued that the laws were silent on how far in advance someone has to request Family and Medical Leave Act and Americans with Disabilities Act leave. The employee’s attorneys argued that she did not know when her embryo transfer would occur and, thus, the employee was unable to inform the department of her procedure until it was actually scheduled. The Third Circuit pushed back on the employee’s position, asking the employee whether she could have at least provided notice to her employer that she was undergoing IVF and would need to take leave at some point in time that was unknown. The attorney for the state argued that even though the employee’s procedure date was a “moving target,” she knew it would happen and should have notified her employer.
Employers dealing with employee leave issues for any disability or medical reasons should tread carefully. The employer in this case might ultimately prevail; that is to be determined. However, the cost and time lost defending the lawsuit are reasons enough to diligently examine all options before terminating an employee who had requested leave due to the medical reasons. Such terminations are almost always “high risk” terminations and need to be carefully considered before execution.