Another “head-shaker” case from FMLA land. Section 825.303(a) of the DOL’s regulations on requesting FMLA leave provides that when an unforeseen need for FMLA leave arises, “an employee must provide notice to the employer as soon as practicable . . . within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” 29 C.F.R. § 825.303(a) (emphasis added). But what happens when the employer has more than one policy that might apply? In Archey v. AT&T Mobility Servs. LLC, 2019 U.S. Dist. LEXIS 53637 (E.D. Ky. 2019), it resulted in the denial of summary judgment to the employer.
Lori Archey was, it appears from the court’s decision, a person who regularly used leave, including intermittent FMLA leave, for her anxiety and migraines. AT&T has an attendance policy that assesses points for unauthorized absences. Leave that is FMLA qualifying does not result in points, as it should be.
After accumulating some serious points under the attendance policy, Archey got a note from her doctor stating that she would be absent up to three days a week due to her migraines and anxiety. Between January 1 and April 26, 2014, she “took approximately 37 days off due to her ongoing medical issues.” On a five day a week schedule, that amounts to Archey missing over 45% of her work days. Put aside for the moment that this is precisely why supervisors find unforeseen intermittent FMLA absences so confounding and challenging to deal with. But that is what the law protects, so suck it up.
On March 26, 2014, however, AT&T claimed that Archey did not follow company rules regarding providing notice of a need for FMLA leave. The court noted that the dispute largely boiled down to whether Archey did what she was supposed to call in that day. AT&T pointed to its FMLA policy available to employees at the “HR One Stop web portal.” Undisputedly, Archey did not follow that policy.
But Archey pointed out that AT&T also had a “brochure or handbook… titled FMLA: A Look at the Basics, which appears to mandate a different procedure for how to apply for FMLA leave.” Archey claimed that she had followed this policy when she provided notice that her March 26 absence was FMLA covered, and each of the other times she had an unforeseen intermittent FMLA absence.
AT&T did not dispute that these two policies – with their different requirements – were both in effect and that Archey had access to both of them. The company’s witness, however, testified that Archey did not follow the first policy on March 26, claiming that this was the “usual and customary” way to request FMLA. Therefore, averred AT&T, summary judgment should be entered for the company.
The court was not convinced. The only evidence that the “usual and customary” method of requesting FMLA leave was by using the first – not the second – policy was found in the parties’ conflicting affidavits. And that is precisely the sort of dispute of a material fact that precludes the entry of summary judgment.
The take away here? It is not unusual for an employer to update or revise policies. When that happens, however, the employer should make sure employees are made aware that only the revised policy applies going forward. The employer is well served to announce – in writing – that former versions of the policy no longer apply. If the employer has two different policies, both of which could apply to a situation, it should be prepared to be stuck with both.