Employee refused to contact FMLA TPA – terminated for excessive absences

A recent case from the Ninth Circuit found that an employee’s two doctor’s notes did not provide enough information for the employer to determine whether his absence qualified for protections under the Family and Medical Leave Act (FMLA). The court also stated the employee failed to follow company policy for initiating FMLA leave, including contacting a third-party administrator to start an FMLA claim. Here’s the story:

The case

On May 25, Joe got approval from his supervisor to leave work because of severe abdominal pain. Joe’s wife picked him up from work and took him to the emergency room. After tests and treatment, he was sent home with two doctor notes indicating that he could return to work on May 26 and May 27, and suggested that Joe seek follow-up treatment if needed.

The employer felt that the notes didn’t include enough information, as they didn’t include anything about the severity or duration of the condition, or mention work limitations or restrictions.

Tom, Joe’s boss, asked HR if Joe’s absences were attendance incidents or FMLA leave, as Joe did not have a stellar attendance record and was close to termination.

HR told Tom that Joe had 48 hours to contact the company’s FMLA third-party administrator (TPA) to initiate an FMLA claim per company policy. If not, the absence would be logged as an attendance issue.

Joe was emailed this information, despite telling people that he checked email only once a week. Therefore, Joe did not read his email about contacting the TPA until after the deadline to do so passed. He was called to a meeting and told his absences were attendance incidents.

When told that he was supposed to contact the TPA, Joe refused to and said he didn’t have to in order to get FMLA; that the notes were enough.

Excessive absences lead to termination

He was subsequently terminated for excessive absences, and sued, arguing that he gave enough information to get FMLA leave. He claimed that having the additional requirement of contacting the TPA was discriminatory, and he didn’t get actual notice of the company’s updated medical leave policy.

The court didn’t buy Joe’s argument as the employer:

• Mailed a summary of its updated policies to all employees (Joe said he didn’t get it),
• Posted notices of the policy throughout the workplace,
• Sent Joe an email on this, and
• Told him to check his email.

The bottom line

While the court ruled in favor of the employer, a dissenting judge thought it significant that the employer waited to respond to Joe’s doctor notes. They didn’t tell Joe that his FMLA claim was deficient; only to follow up with HR and check his email. The dissenting judge felt that a jury could conclude that the company prioritized terminating Joe rather than complying with its regulatory obligation to make reasonable efforts to determine whether he was entitled to FMLA leave.

This employer did, however, win the case. Could another court have had a different opinion? Maybe. In any case, clearly communicating company policy is a best practice, and employees are expected to read the communication.

Key to Remember

​While it’s generally okay for employers to hold employees to certain policies, a safer way to handle a delicate case might be to go above and beyond to avoid backlash.

Munger v. Cascade Steel Rolling Mills, Inc., 9^th Circuit Court of Appeals, No. 21-35618, January 9, 2023.