“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the sixteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.
Not requiring an employee to follow customary call-in procedures for FMLA leave.
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. 29 C.F.R. 825.303. For example, an employer may require employees to call a designated number or a specific individual to request leave.
In IBEW Local 1600 v. PPL Elec. Utils. Corp., 2017 U.S. Dist. LEXIS 210804 (E.D. Pa. Dec. 22, 2017), the employee was informed that she needed to call the employer’s third party FMLA administrator and her supervisor when calling off for FMLA leave. On a later date, the employee advised her supervisor that she needed to leave early, referring to FMLA time, but failed to also contact the employer’s third party FMLA administrator. As a result, the employer denied her request for FMLA leave for that day and recorded an unexcused absence on her record. The court determined that the employer did not interfere with the employee’s FMLA rights when it denied her FMLA leave. The court stated that the employer’s requirement of two phone calls to give notice of FMLA leave did not impose so great a burden on employees that it would discourage the employees from taking unforeseeable FMLA leave.
In Hunt v. Altec Industries, Inc., 2015 U.S. Dist. LEXIS 126210 (N.D. Ala. Sept. 22, 2015), the employee was terminated after accruing too many points for unexcused absences based on the employer’s attendance policy. The employee argued, however, that the absences were FMLA-qualifying and should not have counted against him. The employer’s leave policy was administered by a third party vendor, and mandated that all employees contact the third-party vendor to request a leave of absence. The court found that the employer did not interfere with the employee’s rights by terminating him, as the employee failed to avail himself of a protected right under the FMLA when he chose not to comply with the employer’s notice procedure of contacting the employer’s third-party vendor for FMLA-qualifying leave.
If an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, an employer may delay or deny FMLA-protected leave. However, employers should clearly include this requirement in an FMLA policy, so that the requirement is well communicated.