On 2/3/17, the 10th Circuit Court of Appeals affirmed summary judgment for an employer on FMLA claims where the adequacy of notice by employee and employer alike was at issue. In this case, the court criticized the vagueness of the employee’s communication, and excused the employer’s failure to advise the employee of FMLA rights, relying heavily on the fact that the employee had previously asked for and taken multiple FMLA leaves.   The case is Branham v. Delta Airlines (10th Cir. 2/3/17).

Employee’s notice not sufficientThe opinion quotes FMLA regulations which state “when an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert FMLA rights under the FMLA or even mention the FMLA.” Here, the court noted that the employee had already requested and received FMLA leave “multiple times” during her tenure both for herself and to care for family members.  The court indicated that it was not convinced that the employee, a flight attendant, had provided sufficient information to put Delta on notice that she may be FMLA eligible. The employee had called Delta at 1:55 a.m. and said that her mother was “very ill” and that she was “still up and caring for her.”   The court indicated that under the FMLA regulations, calling in sick without providing more information will not be considered sufficient to trigger an employer’s obligations under the FMLA.  

Employer forgiven for not advising employee of FMLA rights. The court went on to say that even if it assumed that the employee’s “vague assertions” were sufficient to put the employer on notice, the employer did not violate the FMLA when it failed to provide her notice of her FMLA rights because she had taken prior FMLA leaves. The court implies that employers may be forgiven for failing to provide the required FMLA notice when they are dealing with employees who have previously successfully exercised right to FMLA leaves.

Employee can be disciplined for absence even if it the absence was FMLA eligible. The court also concluded that the employer had not violated the FMLA for terminating the employee for failing to comply with its policy requiring notice of absences, even if the absences that the employee failed to properly report were protected by the FMLA. The court noted that the employee was on a “Final Warning” at the time that she failed to comply with the notice procedures and that, accordingly, the termination was justified.

Lessons for Employers? This case is a “win” for employers. The court granted summary judgment to the employer even though it failed to notify the employee that her absence may be FMLA eligible and even though the employer terminated her for what may have been an FMLA eligible absence. The underlying facts may have influenced the court’s willingness to rule in favor of the employer. The reason that the employee was on Final Warning was because she had previously been terminated from employment after reporting to work when her blood alcohol was above the limit applicable to flight attendants. She was subsequently reinstated after completing an alcohol treatment program but was placed on a Final Warning advising her that that she could be terminated for “any infraction of Delta’s policy or failure to meet Delta’s standards for as long as she continued working for Delta.”   Employers are well-advised, as always, to contemplate whether their actions will be perceived as being fair by judge and jury alike.