The Family and Medical Leave Act (“the FMLA”) and its accompanying regulations contain notice requirements for both employers and employees. Recently, there have been a number of court cases where employers have been granted summary judgment on FMLA claims where employees did not follow the employer’s procedures requiring the employees to call-in to both the employer and the outsourced absence management provider when requesting or taking FMLA leave.
29 CFR § 825.302 -- Foreseeable leave. For foreseeable leave, employees must provide at least 30 days advance notice. If 30 days is not practicable, employees must provide as soon as practicable. The Department of Labor (DOL) defines “as soon as practicable” to mean “as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case.” The DOL’s regulations also provide that employers may require an employee to comply with the employer’s usual and customary notice and procedure requirements for requesting leave, absent unusual circumstances.” As an example, the regulations state that 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.” The regulations also state that an employee “may be required by an employer’s policy to contact a specific individual.”
The regulations note that “unusual circumstances” that may excuse an employee's failure to follow notice procedures would include situations such as when an employee is unable to comply with the employer’s policy that request for leave should be made by contacting a specific number because on the day the employee needs to provide notice of his or her need for FMLA leave there is no one to answer the call-in number and the voice mail box is full.” The good news for employers, however, is that the DOL regulations make clear: “When 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 CFR § 825.303 -- Unforeseeable leave. The DOL regulations provide that when the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer “as soon as practicable under the facts and circumstances of the particular case.” The DOL regulations also state that when the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. As an example, the regulations note that an employee who required emergency medical treatment, he or she would not be required to follow a call-in procedure until his or her condition is stabilized and he or she has access to, and is able to use, a phone. Again, the DOL regulations make clear; “If 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.”
Recent Cases involving Outsourced Absence Management providers. In 2016 and 2017, there have been four federal court decisions where employers were granted summary judgment on FMLA and other claims on the ground that the employers’ notice procedures included a requirement that the employee contact his or her manager as well as the outsourced management provider and the employee failed to do so.
1. Perry v. American Red Cross Blood Services, TVA Region (6th Cir. 06/01/16). The employee (who had a number of health conditions over a several year period) was approved for intermittent FMLA leave, and in her approval letter, she was advised that when she was away from work due to intermittent leave, she was required to (1) first report any immediate or upcoming absences from work to her manager using her department’s attendance procedures and (2) then call the out-sourced absence management provider to request leave. The employee was terminated from employment because of excessive absenteeism, and she argued that because some of the absences were covered by the FMLA, her termination violated both the ADA and the FMLA. The court disagreed emphasizing that on a number of the absences the employee did not follow the required call-in procedures and while she notified her manager she was going to be out she did not contact the outsourced absence management provider. The court said that the employee did not provide any evidence of unusual circumstances that excused her from following the employer’s policy and that she also did not provide any evidence that the policy was selectively enforced. The court also emphasized that the call-in procedures had been clearly communicated to the employee and that, in fact, she admitted she was aware of them.
2. Duran v. Stock Building Supply West, LLC (9th Cir. 1/12/17). This was a case decided under the California Family Rights Act (CFRA), which is the California version of the FMLA. The employee told HR that he wanted to take leave to care for his ailing father. The HR representative responded in an email and advised him that “to request any leave” he had to fill out the employer’s Leave of Absence (LOA) form and obtain certification through the employer’s third party absence management provider. The employee never filled out the LOA form or applied for leave through the outsourced absence management provider.
3. Alexander v. Kellogg USA, Inc. (6th Cir. 1/4/17). The employee (who had taken frequent FMLA leaves over the years) was approved for intermittent leave. His employment was terminated for excessive absenteeism. He argued that some of the absences were FMLA protected. The court disagreed because the employer had a notice requirement that obligated employees who had been approved for FMLA intermittent leave to call the outsourced absence management provider within 48 hours of an absence that the employee wanted to designate as intermittent leave. The court concluded that it was undisputed that the employee was aware of the requirements of the leave policy but did not follow it on 4 separate occasions.
4. Scales v. FedEx Ground Package System, Inc. (N.D. Illinois 1/24/17). The employee notified FedEx’s HR department that he was going to have hip replacement surgery. However, he did not contact the outsourced absence management provider to initiate the FMLA leave process, even though he had been advised that he needed to do so. The employee made several excuses for his failure to contact the outsourced provider including that he claimed that he did not recall receiving the external absence management provider’s leave request form. However, the court noted that the form was referenced in (and attached to) an email that HR sent to the employee. The court observed that the employee had responded to the email. The court also pointed out that given his role as a manager, the employee was familiar with the process for requesting and administering FMLA leaves because he was involved in communications with regard to employees who requested FMLA leave.
What should employers do? That depends. Some employers do not want to have a corporate culture that requires strict adherence to call-in requirements for purposes of taking FMLA leave. Indeed, some employers want to help employees get their leave requests filed. Interestingly, the regulations recognize that such workforces exist, and contain a provision explicitly stating that employers can waive the notice requirements.
However, especially with regard to intermittent leaves, effective notice requirements can help reduce the abuse of intermittent leave. If notice is not required, employees may feel at liberty to justify unexcused absences after-the-fact on the ground that they were FMLA protected. If employers are interested in being able to point to failure to follow call-in requirements as a grounds for denying FMLA leave and taking disciplinary action, they should bear in the mind the following:
- The notice procedures should be in writing and be clear.
- There needs to be excellent evidence that the employee was aware of the notice procedures. To that end, the notice procedures should be communicated in writing as many ways as possible: (1) employee handbooks; (2) employee websites; (3) approval letters; (4) individualized emails to employees.
- The notice procedures need to be enforced on a consistent basis. If employers waive the notice procedures for some employees but not others they are at risk for a selective enforcement claim.
- Employers should be willing to carefully evaluate whether “unusual circumstances” exist to justify a failure to follow the notice procedures.
It may be useful for an employer to review and update its call-in procedures even if it is not certain that it intends to vigorously enforce them. These call-in requirements can act as a deterrent for FMLA abuse.