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Recent decision reminds employers to consider the FMLA when an employee misses work for a medical reason

7/16/25

By: Shane Miller

If an employee misses work for a medical reason, a prudent employer should pause to consider if the absence may be protected by the Family and Medical Leave Act (FMLA). The employer should be cautious about taking disciplinary action against the employee for the absence until resolving this question. 

That is a key takeaway from the Third Circuit’s recent opinion in Isaiah Walker v. Southeastern Pa. Transportation Authority, Case No. 24-2275, 2025 WL 1879521 (3d Cir. July 8, 2025). In that case, the employee (a bus operator) suffered from sickle cell anemia. He told his employer about this condition. The employee had a poor attendance record during his employment. He finally entered into a “last-chance agreement” with his employer. It provided that his employment would be terminated if he accrued a certain number of unexcused absences in the future. 

On June 7, 2021, the employee experienced pain associated with his sickle cell anemia. He had to be hospitalized. That morning, he called his employer to say that he must go to the hospital. He also told his employer that he did not have a babysitter. The employer marked the reason for his absence as “NO BABYSITTER,” which was an unexcused absence. This latest absence pushed the employee over his limit under the last chance agreement. Later that day, he submitted an FMLA leave application to the employer. The next day, the employee had another flare-up. He returned to the hospital and called in sick again. The employer also approved his FMLA leave request beginning on June 7. However, the employee was subsequently terminated for exceeding his permissible number of absences under the last-chance agreement. 

After his termination, the employee sued the employer under the Americans with Disabilities Act and the FMLA. The trial court dismissed his claims at the summary judgment stage. In relevant part, the trial court ruled that the employee’s claims for FMLA interference and retaliation warranted dismissal because he failed to provide adequate notice to his employer that he needed to take FMLA leave on June 7, 2021.  

On appeal, the Third Circuit ruled that the trial court erred by dismissing the employee’s FMLA claims. The Third Circuit noted that “[s]howing that notice was provided is not particularly onerous.” In fact, an employee “need not expressly assert rights under the FMLA or even mention the FMLA” in providing notice to an employer. Although simply “calling in ‘sick’ without providing more information” is not enough, the Third Circuit ruled that the employee arguably provided sufficient notice of his intent to invoke his FMLA rights on June 7 for the following reasons: 

• He called his employer and requested an emergency day off because he had to go to the hospital; 

• He initiated a formal FMLA leave application several hours later; and 

• The employer subsequently granted his FMLA leave application, which covered his absence on June 7. 

At bottom, the Third Circuit ruled that the employer “could not legally penalize [the employee] for an absence that became FMLA leave before his firing.”  

Walker serves as a useful reminder for a simple point: an employee generally must clear a low bar to request FMLA leave. The employee typically does not have to make a written request, expressly assert rights under the FMLA or even mention the FMLA. So, if an employer learns that an employee may need to miss work for a medical reason, the employer should pause to consider if the FMLA may apply to the absence–even if the employee never mentions the FMLA. And given that the FMLA can be a complicated statute, it is often wise to seek legal counsel when handling these issues.  

For more information, please contact Shane Miller at shane.miller@fmglaw.com or your local FMG attorney.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.