Use same procedures for other forms of leave

Arpita knew her mother was sick, but didn’t know the extent until one day, while at work, she received word that her mother needed surgery quickly. She told her manager that she needed a week off to be with her mother. The manager told Arpita to take all the time she needed. Subsequently, the manager required Arpita to work a shift during which she would otherwise take leave, which she did. When Arpita didn’t hear from the manager after that, she concluded that she could have the time off.

Arpita learned about the FMLA from a family member, and asked her manager about it. The manager, however, told Arpita only that he was working on it. Even after repeated requests about the FMLA with no resolution, the manager took Arpita’s absences as a no-call-no-show and terminated her.

Not surprisingly, Arpita filed a claim, arguing that the employer terminated her because she took FMLA leave. The employer, on the other hand, argued that Arpita was not entitled to FMLA leave because she did not follow the company’s FMLA policy for calling in — she did not notify the HR department.

This is where things got messy — the company’s FMLA policy had different notice requirements than the policies for requesting other forms of leave. Under the FMLA policy, employees needed to notify both their managers and HR. Under the other policies, employees needed only to notify their managers.

The employer turned to the FMLA regulations and tried to argue that an employer’s “usual and customary notice and procedural requirements for requesting leave” means, that when the employer has an FMLA policy addressing such matters, the employer’s requirements for requesting FMLA leave specifically, even if those requirements differ from, and are more onerous than, its requirements for requesting leave in general.

The court, however, rejected the employer’s reading of the regulations and concluded that the relevant notice and procedural requirements are those governing leave generally, not FMLA leave specifically. The regulations do not allow employers to deny leave based on a failure to comply with more stringent notice and procedural requirements applicable to FMLA requests but not to other forms of leave.

The court went on to say that it would seem a curious regime that would grant FMLA protection only to effectively negate it by requiring the employee to follow an explicitly FMLA-specific notice procedure — which she would do only if she understood that her leave could be FMLA-qualifying. In this case (as in many), the employee was not familiar with the FMLA, so she did not know whether her leave would qualify for FMLA protections. Therefore, she would have no reason to refer to the FMLA policy.

Therefore, if your FMLA policy requires more stringent notice requirements than employees need to meet for other forms of leave, you might want to revisit it. Having more onerous FMLA notice requirements could set you up for a potential discrimination risk.

Moore v. GPS Hospitality Partners IV, LLC, S.D. Alabama, No. 17-cv-0500, June 3, 2019.