Scorned employees will cry “FMLA protection” for just about anything these days. The question is, when can the argument stick? 
The answer, unfortunately, is all too familiar: It depends.
All employers can do is look at what the courts are currently saying, and use their guidance to direct FMLA policies and procedures.
In a recent case, an employer’s smartly crafted policies won the day.

Migraines caused her to miss work

The case involved Jodi Lasher, a registered nurse for Medina Hospital in Ohio.
Lasher suffered from severe, sometimes debilitating, migraine headaches. These migraines had caused her to miss work on several occasions, for which she was issued a written warning. The hospital’s management had even received complaints from employees that Lasher had “disappeared” from her unit to deal with her headaches.
Medina hospital did the right thing. It approached Lasher about exploring possible accommodations for her condition. Then, after determining that accommodations weren’t applicable to her situation, the hospital’s management team recommended that Lasher use intermittent FMLA leave to deal with her condition.
At this point, the hospital laid out a procedure that Lasher was to follow when her migraine symptoms flared up — symptoms severe enough to prevent her from doing her job, that is. The procedure required Lasher to let the nurse operations manager on duty, or at the very least one of her colleagues, know when she needed to remove herself from her duties.
Lasher acknowledged that she understood this procedure, and she agreed to follow it in the future.
The hospital approved all of Lasher’s FMLA leave requests, including an occasion when she developed migraine symptoms during her shift.

‘Major infraction’

Fast forward months later, and Lasher had a migraine flare up while on duty. She then left a pregnant patient unattended without informing anyone.
She was then found sleeping in an adjacent vacant room.
The hospital labeled it a “major infraction” of its procedures. It said it created an employee, as well as a patient, safety issue. So it fired Lasher.
She then filed an FMLA interference lawsuit. In essence, she claimed her nap was FMLA-protected.
The hospital filed for summary judgment in an attempt to get Lasher’s lawsuit thrown out.
The court granted summary judgement in favor of the hospital and tossed the suit.
It ruled that for Lasher’s FMLA interference claims to survive summary judgment, she had to show:

1. she was an FMLA-eligible employee
2. the hospital was an employer as defined under the FMLA
3. she was entitled to leave under the FMLA
4. she gave the employer notice of her intention to take leave, and
5. the employer denied her FMLA benefits to which she was entitled.

Where Lasher’s claim fell apart was in satisfying the fourth element of that test. The court ruled Lasher failed to provide notice of her intention to take FMLA leave, despite an established procedure for providing notice that Lasher had agreed to follow.
The court then added:

“An employee seeking FMLA leave need not mention the statute expressly, but she must convey enough information to apprise her employer that she is requesting leave for a serious health condition that renders her unable to perform her job.”

Even using this somewhat lenient standard, Lasher’s actions fell short.
Case closed. Lawsuit tossed.
But before putting a bow on the case, the court pointed out some of the other facts the hospital had on its side. For starters, it had a track record of approving Lasher’s prior leave requests without fail. Plus, the hospital itself was the one to suggest Lasher apply for FMLA leave in the first place.
Both of those elements gave Lasher a pretty steep hill to climb to prove that the hospital intended to interfere with her FMLA rights.
Cite: Lasher v. Medina Hospital