When I speak or provide training on the FMLA, I often start by apologizing on behalf of Congress and the Department of Labor. Congress, for creating a law the way you design a horse by committee (it comes out looking like a camel); the DOL for implementing regulations that you need legal expertise to follow and get right (and even then it is sometimes a crap shoot).
For sure, the toughest FMLA area for employers is accommodating unforeseen, intermittent leave (think an employee’s migraines or a young child with asthma). But a close second is dealing with the Act’s notice requirements. More specifically, when does an employee provide sufficient notice of a need for FMLA leave?
The regulations state that just calling in “sick” is insufficient. 29 C.F.R. § 825.303(b). But wait, they also say that “[w]hen an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA.” Id. The no-man’s land in between can create “a dispute of material fact” (a really bad phrase for employers in litigation), if HR staff who interact with an absent employee are not 110% vigilant.
Over a period of nearly 10 years the Seventh Circuit took the lead on FMLA notice cases, evaluating what qualified as sufficient notice in a variety of circumstances. Among them: Aubuchon v. Knauf Fiberglass, 359 F.3d 950, 952 (7th Cir. 2004) (“I want to stay home with my pregnant wife” not sufficient); Kauffman v. Federal Express Corp., 426 F.3d 880 (7th Cir. 2005) (doctor’s note stating employee had missed three days of work due to bronchitis sufficient); Burnett v. LFW, Inc., 472 F.3d 471 (7th Cir. 2006)(supervisor’s knowledge of employee’s prostate “issues” sufficient to get employee past summary judgment in a “close case” where employee never mentioned he had prostate cancer until after he was fired); Byrne v. Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003), cert. denied, 540 U.S. 881 (2003) (employee’s significant behavioral change at work sufficient), and Stevenson v. Hyre Electric Co., 505 F.3d 720 (7th Cir. 2007) (same, where employee had an unusual outburst to stray dog in her warehouse office and complained to OSHA of “wild animals in the workplace”).
It has been quiet for a while. Too quiet… The Seventh Circuit recently resurrected this challenging issue in Lutes v. United Trailers, Inc., 2020 U.S. App. LEXIS 2484 (7th Cir. Jan. 27, 2020). Buddy Phillips (now deceased) worked at United Trailers (UT) for thirteen years when he was fired for accumulating too many points under UT’s attendance policy.
Phillips injured his ribs playing with his grandchildren over the July 4 holiday. He called out for each scheduled shift over the first two weeks. The calls were logged by a payroll assistant who wrote “rib.” Phillips’s wife recalled that he told the payroll assistant he had fractured his ribs and was seeing a doctor. The payroll assistant claimed he said only “rib.”
UT’s HR folks never sent Phillips any FMLA certification forms during the two weeks he was absent and did call out. Under the DOL regulations, however, they were required to do so within five days of his absence. Then Phillips stopped calling in and his repeated “no-call/no-show” got him fired without further inquiry from UT.
The district court granted UT summary judgment on both Phillips’s FMLA retaliation and interference claims. The Seventh Circuit affirmed summary judgment on the retaliation claim but reversed on the interference claim.
The reason? A dispute of material fact (there’s that ugly phrase) over what Phillips said and when he said it. Also, why didn’t UT’s HR folks send him the FMLA certification form? These two questions – depending on which way the factfinder (read “jury”) interprets the testimony – could be the tipping point of the case. On remand, to show FMLA interference, Phillips’ personal representative will need to establish how Phillips was prejudiced by UT’s actions (or inactions) and how Phillips would have acted differently if he had timely information about his FMLA rights.
Regardless of how it turns out, a whole lot of money has been spent on this litigation that did not need to be spent if the employer had followed a couple of simple suggestions. First, notice issues are hard stuff that require trained staff to have “antenna up” when there’s any mention of a possible FMLA issue. Second, employers need to follow the rules and send out certification forms within five days of receiving notice that an absence is possibly FMLA related. Third, employers are often too eager to pull the trigger on “no-call/no-show” employees, without first doing some due diligence on the reason for absence. The FMLA permits employers to be more generous than the law requires. Perhaps, sometimes, that’s just the right thing to do. And, professional self-interest notwithstanding, it’s likely cheaper than paying your lawyers for many years of litigation.