A few months ago I wrote that employers can and should consider
requiring that employees make two calls to request leave under the Family and Medical Leave Act (FMLA). For instance, you might require one call to the supervisor to report the absence, and a second call to Human Resources (or your third-party administrator) to request FMLA leave.
All good, right?
Well, let me share a cautionary tale for those who have implemented or are contemplating this two-call requirement, because one federal court just threw us a curve ball. (Moore v. GPS Hospitality Partners IV, LLC, S.D. Ala. June 3, 2019.)
The Facts
LaShondra Moore was employed at a local Burger King restaurant owned by the defendant, and during her Saturday shift, she told her boss that her mom was in a “life-or-death situation that required surgery,” and that she needed “a week off” to be with her. In response, her supervisor told her to “take all the time” she needed.
She stayed in touch with her boss about her continued absence for a few days, but then was spotty in her communications on several other days the following week. It was not until the following Wednesday that Moore asked her supervisor for FMLA leave. In the meantime, however, she had a no-call, no-show that same Wednesday and, although the reasons for her termination the following week were unclear, the no-call, no-show surely was a key factor.
Under the Burger King FMLA policy, which was outlined in the restaurant’s employee handbook, employees like Moore were obligated to contact both their supervisor
and Human Resources to request FMLA leave. In this instance, Moore called her supervisor, but did not call HR to request FMLA leave as required in the policy.
In defending against Moore’s eventual FMLA claims, the restaurant pointed to her failure to comply with both components of the notice requirements of the FMLA policy. Although Moore may have alerted her supervisor, she failed to follow the second part of the notice requirement—contacting Human Resources to request FMLA leave.
How Did This One Turn Out?
Over the past few years, employers have scored victory after victory where they have implemented a two-phone-call notice requirement and the employee has, in turn, not followed the procedure. As I noted in my previous post on this topic, numerous federal appellate courts have upheld the employer’s right to maintain this rigorous notice obligation.
Not this court.
After analyzing the notice provisions of the FMLA regulations (and preamble!) in painstaking detail, the court rejected the restaurant’s argument that Moore’s failure to notify Human Resources precluded her from taking FMLA leave. Specifically, the court held that an employer can maintain a “two-call-in” requirement
only if this approach applies across the board for
allleave requests. In other words, this court determined that an employer cannot deny FMLA leave based on an FMLA notice requirement that includes more procedural hurdles than what the employer requires for other types of leave.
Sadly, the court didn’t stop there, as it found there were unusual circumstances that prohibited Moore from following the call-in requirements anyway. Notably, the court found it unreasonable for Moore to have read and understood the obligations contained in the FMLA policy since she had only been given access to the new employee handbook (with the 2.5-page FMLA policy contained therein) two months earlier and she “didn’t have time” to review the policy.
Curiously, the court also appeared concerned that the employee did not receive an actual hard copy of the handbook, though it was readily accessible to Moore in an online format.
[SHRM members-only toolkit:
Managing Family and Medical Leave]
Insights for Employers
I had a visceral reaction to this decision after I read it, and my knee-jerk reaction was to wad it up and throw it in the garbage can.
Let me explain.
As an initial matter, the court failed to recognize that the FMLA, by its very own bureaucratic terms, demands that employers and employees alike assume a host of somewhat challenging and time-consuming obligations that simply aren’t required in an ordinary sick-leave situation. Indeed, the 2009 regulatory changes made clear that these amendments hoisted several additional responsibilities on employees that do not apply in a typical sick-leave situation.
Moreover, from a practical standpoint, it’s quite common for employers to have several different processes for requesting sick leave vs. paid time off vs. vacation vs. short-term disability vs. military leave vs. FMLA leave. So, which of these processes should an employer select so as to remain complaint with this court decision?
Following this decision leads potentially to absurd results, though we need to give it due consideration (see recommendations below).
Then, there’s the issue of the employee handbook. How long should employees have to acquaint themselves with a handbook before the employer can start enforcing its provisions? 6 months? 12 months? Perhaps longer if employees can show they “didn’t have time” to review it? Where is the personal accountability here? Can you imagine the lawless workplaces we’d encounter if employers were handcuffed from enforcing reasonable provisions in an employee handbook? This kind of judicial officiating doesn’t operate in reality.
I haven’t even gotten to the point that
several other appellate courts have found this two-call policy perfectly appropriate. How much weight do we give
this decision, given the weight of these several other, persuasive decisions?
Perhaps not much. But let’s be careful. This decision reminds us of a few important principles:
Whenever possible, align paid-leave procedures with your FMLA procedures. There is much here to suggest that this case could be limited in persuasive value because of its distinguishable facts, but let’s use it for what it’s worth—we’re in a more defensible position when our procedures for requesting leave of any kind align.
Managers must have an understanding of their role in the FMLA process. Although I did not focus much on the managers’ response to Moore’s eventual request for FMLA leave, the reaction is not going to win any best-practice awards. In fact, their reaction to her request for leave was pretty horrible and made it fairly clear to me that they didn’t have a clue about their responsibilities under the FMLA. FMLA training is critical. Don’t push it off.
Managers must be able to recognize when an employee’s request is potentially for an FMLA-qualifying reason and to take steps to ensure that neither the supervisor nor the staff interferes with an employee taking leave protected by the law.
On that same note, one of the quirky facts about this case was the FMLA policy’s requirement that a manager, when informed of the need for FMLA leave, was obligated to advise the employee to go to Human Resources to make the FMLA request.
Get this kind of stuff out of your FMLA policy! Don’t put responsibility on the manager to respond in this way, because once they don’t, you’re on the hook for the breakdown. Keep the responsibility always on the employee to report the need for FMLA leave.
That doesn’t mean that managers are off the hook—they must be trainedon how to properly handle an FMLA request (see above!), which should include counseling the employee to report the absence per the employer’s absence policy, but the policy should not
bind the manager to respond in a certain manner.
As we see here, the court took issue with the fact that the FMLA policy required the manager to act in such a manner, but he didn’t do so. This artificial, procedural hurdle created yet another problem for this employer.
This decision gives heartburn to employers that use third-party administrators, as there are very few TPAs that handle all the leave administration for an employer (another reason why this decision makes no practical sense). Employers should consider whether leave requests generally should flow through a common location, such as a TPA or Human Resources.
Jeff Nowak is a shareholder at Littler, an employment and labor law practice representing management, and author of the
FMLA Insights blog, where this article originally appeared in a slightly different form. © 2019 Jeff Nowak. All rights reserved. Republished with permission.
Visit SHRM’s resource page for the
Family and Medical Leave Act.
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