Ed was an autoworker who dealt with apparent bouts of depression for which he sought intermittent FMLA leave. But he also had fistfuls of unexcused absences, so much so that he stood on the precipice of termination — one attendance point away, to be exact.
Like many good employers, Ed’s employer required him to call into an attendance hotline to report his unforeseeable absences. FMLA leave also was administered by Sedgwick, a third-party administrator, so there were some extra steps in the approval process.
As a prophylactic measure, Ed submitted medical certification before any absence for his flare ups, as employees are wont to do. Easy there tiger, you actually haven’t had an absence yet, Sedgwick told Ed, conditionally approving him for FMLA leave but reminding him that he needed to follow the usual approval for calling off his absences. [Nicely done, Sedgwick! Btw, I suspect Sedgwick didn’t actually use the term “Easy there tiger,” but if it did, that would have been absolutely precious!]
On three separate occasions over a short period of time, Ed called the attendance line right before his shifts started. Each time, Ed cryptically requested time off in the following ways:
- On the first occasion, Ed stated, “I’m having a flare-up. I don’t feel good at all.”
- On the second occasion, he reported, “Um, I’ve been sick the last few days.”
- Then, on the final occasion, he commented, “Um, I’m having a flare-up right now, and I don’t feel good at all.
The employer recorded the call-ins (with the employee’s knowledge), so it had a record of precisely what Ed said.
Naturally, the employer did not consider any of the above to constitute notice of the need for FMLA leave, so it designated them as unexcused absences, leading to his immediate termination. When the union declined to file a grievance over the termination, Ed filed an FMLA lawsuit.
The Court Bounces Ed’s FMLA Claims
The trial court wasn’t buying what Ed was dishing out. Noting that an employee must request leave and give the employer notice that he is requesting leave for a serious health condition that renders him unable to perform his position’s duties, the judge found that Ed hadn’t cleared this hurdle. The court put it this way:
Just like the term “sick”—which is specifically cited by the applicable regulation as being insufficient to provide an employer notice that a leave request is based on an FMLA qualifying condition, there is no evidence showing that the term “flare-up” is tied to any particular disease or medical condition, and can apply to most chronic ailments. In common parlance it would not be unusual, for instance, for a person to say he is having a “flare-up” of seasonal allergies or acid reflux, conditions unlikely to meet the FMLA’s definition of a “serious medical condition.
This is particularly true where the employee already has been approved for leave. Following approval, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. (29 CFR 825.303b)
Ed did neither. FMLA claims dismissed. (Read the decision, Render v. FCA, here.)
Insights for Employers
What’s the quick takeaway here? Using a term like “flare-up,” which is not tied to any particular medical condition, fails to put an employer on notice of the need for FMLA leave. In this case, the denial of FMLA clearly is defensible.
But this doesn’t mean these situations are not without risk. If Ed had reported that he was having flare ups “due to his depression,” or that he “needed to take FMLA” because of his medical condition, this might very well be a different kind of case. These nuances can make or break your FMLA case.
So, a few suggestions:
- Maintain an absence notification policy that requires an employee to call into an actual person or to a call-in line to report their absence and need for leave. Even better, require two calls — one to report the absence generally to the manager, and another to an employer intake line or a third-party administrator handling calls on your behalf. If the employee does not make the second call, the leave is not covered by the FMLA, and therefore, it is unexcused. Here, the employer required a call to a dedicated attendance line, where the person on the other end presumably was well trained to recognize a request for FMLA leave. This is what you want.
- Revise your FMLA policies. Include very clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind. (In your policy, you might also want to include expectations for completing a leave of absence request form, which I also recommend.) My “model” policy provision looks something like this:
When you contact Human Resources to report your need for leave, you must provide at least the following information:
► The specific reason for your absence, with sufficient information to allow us to determine whether the FMLA may apply to your request;
► When your leave will begin and when you expect to return to work, including specific dates and times of absences, if known;
► A telephone number where you may be reached for further information
- Set a deadline for the employee to report an absence. All too often, I review FMLA policies that require the employee to provide notice of the need for FMLA leave (or need for additional FMLA leave) “as soon as practicable” or “within a reasonable period of time.” Remove this vague mumbo jumbo from your policies and replace it with far more strict parameters, such as “at least one hour before your shift begins.”
- Require that your employees tell you why they couldn’t follow your policy. At the end call-in requirements, make clear that the employee is expected to explain why they could not follow the call-in procedures on occasions when they do not follow them. This protects against an employee claiming in the termination meeting that the absence from three months ago actually was FMLA leave and not unexcused absence for which you are terminating them.
- Train any and all managers remotely involved in the FMLA process. Whoever is picking up the call on the attendance line or receiving the call as part of your call-in procedures must be well-trained to recognize the words and behavior that triggers the employer’s obligation to inquire further to determine whether an absence is covered by FMLA leave. As noted above, if Ed had provided just a little more flavor as to why he needed FMLA leave, it would have been critical for a manager to recognize the request as a possible need for FMLA leave, and to take appropriate steps to confirm whether FMLA indeed covered the absence.