Sixth Circuit Clarifies Foreseeability and Notice Requirements Under FMLA
AuthorRobert N. Dare
On Nov. 16, the United States Court of Appeals for the Sixth Circuit issued a published decision clarifying the notice requirements under the Family and Medical Leave Act (“FMLA”). The Court held that a former assembly worker’s intermittent leave for depression and anxiety was unforeseeable, and he provided adequate notice for his absences by submitting medical information detailing the reason for leave and referencing the symptoms in his certification form when he called in.
Edward Render worked on the assembly line for FCA US. In October 2017, Render applied for intermittent FMLA leave. Sedgwick, FCA’s third-party leave administrator, sent Render a letter asking for more medical information and providing prospective instructions on how to report his leave.
Render provided supporting medical documentation indicating that he required three to four days of leave per month to manage flare-ups of depression and anxiety. Sedgwick sent Render a second letter approving his request and providing instructions on how to call in to use his intermittent leave. The two Sedgwick letters provided conflicting instructions for calling in. The first letter states that Render must call a 1-800 number and also call the FCA Service Center at a 1-888 number. The second letter approving leave instructed Render that he must call the 1-800 number to report leave, and provided the 1-888 number for the FCA Service Center for any questions.
On Dec. 6, 2017, Render called the 1-800 number to report an FMLA absence. He stated that he was having a flare-up of an illness, but did not mention FMLA leave or his specific qualifying reasons. He called the next day and allegedly reported another absence. On Dec. 8, Render called to report a tardy and told the FCA operator that it was for “personal or other” reasons. Render called in tardy again the next month, stating that he was having a flare-up and did not feel good. The operator asked Render if he should write “sick” in the comments and Render agreed. Importantly, given that Render did not share the specific cause of his need for leave, all of these tardies and absences were marked by FCA as unexcused.
FCA ultimately terminated Render because his tardies and absences violated the terms of a previous reinstatement agreement. Render subsequently filed a lawsuit against FCA for FMLA interference and retaliation. The district court granted summary judgment to FCA on both claims. With respect to interference, the court found that Render failed to give sufficient notice to FCA of his need for leave.
The Sixth Circuit’s Holding
The Sixth Circuit reversed the district court’s decision. According to the Court, whether Render provided adequate notice to FCA depended upon whether his need for leave was foreseeable or unforeseeable. That in turn governs which notice provision an employee must comply with – 29 CFR § 825.302 (unforeseeable) or 29 CFR § 825.303 (foreseeable). The Court explained that what is foreseeable and what is unforeseeable has been subject to debate because the terms are not defined in the FMLA or its implementing regulations. The Court held that the difference between foreseeable and unforeseeable is knowing when leave will be needed before the time comes to request it.
The Court provided an apt example. Two employees request FMLA leave. The first employee must take time off every Monday, Wednesday, and Friday for dialysis. The second employee must periodically take time off for chronic migraines. The timing of these migraines is difficult to predict, but they can occur a couple of times a month. So where does each employee fall on the foreseeability spectrum?
According to the Court, the key factor for determining foreseeability is whether the timing of the leave was anticipated. The dialysis patient’s request for leave is foreseeable because the times are known in advance whereas the migraine sufferer’s leave is unforeseeable – it is anticipated, but the precise time of the leave is unknown.
Following this reasoning, the court ruled that Render’s mental health issues would likely cause him to miss several days a month, but when the absences would occur was unpredictable, which makes the leave unforeseeable and 29 CFR § 825.303 applies. Under that regulation, an employee provides different levels of notice depending on their history of taking FMLA leave. When an employee seeks leave for the first time for an FMLA–qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA. When an employee seeks leave due to a qualifying reason, for which the employer has previously provided the employee FMLA–protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. However, calling in sick without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the FMLA.
Applying these principles, the Court held that standing alone, an employee reporting merely that he had a “flare up” could be the equivalent of calling in sick, which does not constitute notice. However, the Sixth Circuit agreed with other appellate courts and held that an employer’s knowledge is relevant to assessing the adequacy of notice for unforeseeable leave. To this end, the Court noted that Render submitted a medical certificate that stated he has depression and anxiety and that he would be unable to work when these symptoms “flared up” which could occur 3-4 times per month. Therefore, the court reasoned, by specifically referencing his symptoms flaring up, and later referencing previous days out for the same reason, Render provided adequate notice of his need for unforeseeable FMLA leave each time that he called in.
The Court also rejected FCA’s defense that Render failed to comply with FCA’s call-in policies. The court explained that while an employer may require an employee to follow the employer’s customary notice and procedural requirements for requesting leave, an employee cannot be faulted for failing to comply if the policy is unclear, as it was here.
The FMLA and its accompanying regulations and administration often serve as a legal minefield for employers. This case provides three important takeaways and reminders to guide employers and practitioners:
- The foreseeability of FMLA leave, and corresponding notice requirements, depends on knowing or not knowing when the actual leave will be needed before the time comes to request it.
- An employee may not need to expressly state that he or she is taking intermittent FMLA leave in order to comply with notice obligations, particularly if the employee references his or her ailment or symptoms that were listed as the reason for leave.
- Use of third-party leave administrators often leads to communication issues. Call-in procedures for reporting the need for leave to the employer and/or third-party administrator should be consistent and clear.
If you have any questions, please feel free to contact Rob Dare or any other member of Clark Hill’s Labor and Employment team.
The views and opinions expressed in the article represent the view of the authors and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is it intended to be a substitute for professional legal advice.
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