FMLA Insights - Guidance & Solutions for Employers

The Department of Labor was serious when it required employers beginning in 2009 to provide individual FMLA notices to employees regarding their eligibility and rights (Notice of Eligibility and Rights & Responsibilities) and whether FMLA applies (Designation Notice). 

Apparently, courts think this is important, too.  And The Wackenhut Corporation learned this lesson the hard way.

The Facts

Jacqueline Young worked for Wackenhut Corporation.  Wackenhut met its general FMLA notice obligations in that it included in its employee handbook a notice to employees of their FMLA rights and also posted the DOL's FMLA poster.  However, when Young sought and took FMLA leave, she took all 12 weeks without having received from Wackenhut a Notice of Eligibility and Rights & Responsibilities and a Designation Notice.  Nothing.  Nada. 

In Young's case, she exhausted her 12 weeks of FMLA leave, and when she failed to return after her leave expired, Wackenhut terminated her employment two weeks later.  When Young filed an FMLA interference claim and later filed a motion for summary judgment, the court ruled in favor of Young.  No jury needed.  Automatic judgment was entered in favor of the plaintiff. 

Why?

The Court held that, per the FMLA regulations, the individual FMLA notices provided to the employee are absolute, and when they are not provided, the employee is prejudiced:

Plaintiff was not afforded the opportunity to make informed decisions about her leave, based on the lack of FMLA notice provided to her by [Wackenhut]. Had she been appropriately apprised of her leave time, Plaintiff could have planned and structured her leave time differently. Thus, Plaintiff did suffer prejudice.

According to the court (not to mention a clear read from the regulations), "individual notice" must be provided to the employee when he/she requests FMLA-related leave or when the employer acquires knowledge that an employee's leave may be for an FMLA qualifying reason.  29 CFR 825.300(b). When the employer fails to do so, it suffers the consequences.  Young v. The Wackenhut Corporation (pdf)

Insights for Employers

When employers do not provide the appropriate individual notices (i.e., the Notice of Eligibility and Rights & Responsibilities and the Designation Notice), this is tantamount to strict liability: the employer is on the hook for the loss that results.  As the court pointed out here, when an employee puts the employer on notice of the possible need for FMLA leave, the employer must provide the following notices or risk getting whacked like Wackenhut:

1. Eligibility Notice. Once an employee notifies an employer of an FMLA qualifying medical leave, including the birth of a child, “the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days” of ascertaining that her leave may be for an FMLA-qualifying reason, absent extenuating circumstances. 29 C.F.R. 825.300(b)(l). 

Right and Responsibilities Notice. Whenever the Eligibility Notice (above) is provided, “Employers shall provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. . . Employers are also expected to responsively answer questions from employees concerning their rights and responsibilities under the FMLA.” 29 C.F.R. 825.300(c)(1).

Employers can access this Notice here.  (Notice of Eligibility and Rights & Responsibilities)

2. Designation Notice. Within five days of when an employer has enough information to determine whether the employee’s leave is FMLA qualifying, the employer must notify the employee in writing as to whether the leave will be designated and will be counted as FMLA leave. 29 C.F.R. 825.300(d)(1)(4).

Employers can access this Notice here.  (Designation Notice)

Employers: training your staff about their responsibilities under the FMLA is essential.  When they forget these responsibilities, a simple oversight of the kind here can be extremely costly. 

Later this week, I am conducting FMLA training for management employees at one of our clients.  The training will focus on how the employer can utilize its own current personnel policies to properly administer FMLA leave and combat FMLA abuse.  During this training, I am going to tell them about Ritenour v. State of Tennessee.  Why?  Because it's a great example of how an employer properly applied its call-in policy to discipline and ultimately terminate an employee who chose to ignore her obligation to timely report her absences.

Going into extensive factual detail about the case isn't terribly necessary.  In any event, Jon Hyman does a great job of summarizing the case at his employment blog.  Although the fact pattern is a bit detailed, it boils down to this:  the plaintiff, Amy Ritenour, required time off to care for her child.  In the midst of taking several days off to attend to her son, she was absent for four straight workdays without calling in to report her absence.  Really -- no one heard from her and she had no excuse for failing to call in her absences. 

Under her employer's call-in policy, her failure to call in her absences was a problem, as it should be.  As Mr. Hyman appropriately points out in his blog post, the FMLA regulations are quite clear as to an employee's obligations to call in an absence:

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.  For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. . . .

Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.  29 C.F.R. 302(d)

So, what did the employer's call-in policy state here?  It clearly stated the following:

If you must be late for work or absent because of illness or for an unforeseen circumstance, personally notify your appropriate manager or immediate supervisor as soon as possible by telephone. . . .

If you are not at work during your regular hours, you must be on authorized leave. This means that your supervisor knows of and has approved your absence.  In accordance with the law and rules, job abandonment occurs when an employee is absent from work without approval for three consecutive workdays or two consecutive workdays following the expiration of any authorized leave.

In short, Ritenour was obligated to follow her employer's policy above unless she could establish that an "unusual circumstance" prohibited her from calling in her absences.  As the court pointed out, Ritenour was well aware of the obligation to call in her absences, and when she failed to do so, she was in violation of her employer's reasonable call-in policy.  Her defense was doomed when she failed to articulate an unusual circumstance that otherwise would absolve her of following the employer's call-in policy.  This is particularly true because the employer's policy required proper notice for an absence of any kind, not just those under FMLA.  Therefore, when the employer disciplined Ritenour for violating the policy, it did not do so simply because of her rights under the Family and Medical Leave Act.  Rather, it applied its policy fairly to an employee who was absent from work, just as it would have done with another employee.

Insights for Employers

1. Employers often are reluctant to apply their call-in policy to those employees on FMLA leave.  However, as the Ritenour court points out, an employer's usual and customary call-in policies can and should be enforced, so long as they are applied consistently for all forms of absences.  Consistent application is key.  Employers should use this case as a guide when implementing reasonable call-in policies in their own workplace.
2. As the regulations specifically point out, a employer may require as part of its policies that an employee provide written notice of the need for leave, and that the employee also call in an absence to a particular person.  As I have recommended in the past, I strongly encourage the use of leave of absence forms to ensure full employee compliance and to require the employee to call into a specific person. 
3. If you don't have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place.  They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at the earliest time possible.

When an employee's request for medical leave is vague or is unclear, the Family and Medical Leave Act regulations specifically allow (in fact, they require) the employer to question the employee further to determine whether the absence potentially qualifies under the FMLA.  When the employee fails to respond to these reasonable inquiries, the employee may lose the right to FMLA protection. 

Such was the case for Robert Righi.  In a fantastic opinion for employers, a federal appellate court recently upheld the dismissal of Mr. Righi's FMLA claim because he failed to respond to his supervisor's telephone calls inquiring about his need for a leave of absence.  Righi v. SMC Corporation of America

The Facts

Righi, a salesman for SMC Corp., was the primary caretaker for his mother, who regularly suffered complications from diabetes.  As a result, Righi often took FMLA leave to care for her.  On the occasion at issue, however, he asked for time off after his mother accidentally overdosed on her medication. 

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In a recent post we reviewed the rules relating to posting and publishing the DOL's "General Notice" poster. Among other things, the FMLA rules require employers who have a significant number of employees who do not read English to publish the notice in a language in which the employees are literate. The DOL has a version of the poster available in Spanish, but (as I confirmed with a call to the Department today) not other languages. To make matters more difficult, so far I have not been able to find a vendor who can provide the poster in any other language. 

So, I throw the question out to you: do you know of a vendor or other source where employers can obtain the FMLA poster in a language other than Spanish or English? If so, please share in the comments. 

Under the FMLA, an employer's obligation to provide leave arises only after an employee gives notice that he or she needs FMLA leave. However, it is well-established that an employee need not explicitly mention the FMLA when requesting leave. Rather, an employee's notice is sufficient if it gives the employer enough information to reasonably conclude that the employee may need leave for an FMLA-qualifying reason. Determining whether an employee's request for leave meets this requirement is a difficult proposition, particularly when the employee appears to be using the request to avoid instructions or shield himself from discipline. A recent decision of the 6th Circuit Court of Appeals sheds some light on the subject, and affirms that an employee cannot avoid discharge for insubordination merely by claiming that he had a headache and needed to go home. Gipson v. Vought Aircraft Industries, Inc. (.pdf).

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