- An employer cannot deny Family and Medical Leave Act (FMLA) leave based on FMLA-specific notice requirements that exceed what the employer requires for other types of leave, an Alabama federal district court has concluded (Moore v. GPS Hospitality Partners IV, LLC, No. 17-0500-WS-N (S.D. Ala. Jun. 3, 2019)).
- The employee in the case, who worked at Burger King, informed both her site manager and the district manager that she needed leave to care for her hospitalized mother, but she did not also inform HR — an extra step the employer required for FMLA absences. She alleged she was unaware of this requirement; although the policy was in the employee handbook and the employee had electronically confirmed receipt, she never received a physical copy of the handbook or any handbook-related training, she said. Moreover, it was undisputed that employees lacked sufficient time to read the 31-page handbook in the short time allotted for new-hire paperwork.
- Interpreting U.S. Department of Labor (DOL) regulations, the court concluded that the FMLA does not permit an employer to deny leave based on FMLA-specific notice requirements that exceed an employer's notice requirements for other types of leave, and because Burger King violated its own requirement that managers direct employees to contact HR if they're requesting potentially FMLA-qualifying leave, the court denied the employer's motion for summary judgment.
Employees generally can be required to follow an employer's usual and customary call-in procedures for reporting FMLA absences, Jeff Nowak, a shareholder at Littler Mendelson previously told HR Dive. Employers may need to make exceptions for unusual circumstances, however, such as leave for an unforeseeable emergency.
Terri Rhodes, CEO of the Disability Management Employer Coalition, has similarly recommended that employees requesting potentially FMLA-qualifying leave be required to follow established call-in procedures. However, she said, these procedures must be enforced and consistently applied for all absences, barring unusual circumstances.
DOL also notes that employees often can be required to follow the employer's "usual procedures" for leave requests, but as this case makes clear, FMLA-specific may pose problems. After all, employees may not be aware that a given leave request is potentially covered by the law. For this reason, it's important that all managers are trained in at least the basics of FMLA and other employment laws, so they know when to escalate requests or direct workers to HR or a third-party administrator.
This case also serves as an important reminder about employee handbooks. Even if an employee confirms, online or on paper, that he or she has received and reviewed the employee handbook (in this case, the plaintiff had signed or initialed the final page eight times), a court may still give weight to facts that indicate there was no time for true review or comprehension.
Several appeals courts have addressed FMLA call-out procedures, and it remains to be seen whether Moore will be appealed.