Internal Notice Requirements May Not Interfere With Employee Rights Under the Federal Family Medical Leave Act

Since President Clinton signed the Family and Medical Leave Act (FMLA) into law more than ten years ago, employers and the courts have both struggled to interpret the complex regulations. One area of particular difficulty is whether an employer may lawfully discipline an employee for failing to follow internal reporting policies governing prompt notification of the need for leave if internal policies are different from FMLA guidelines.

FMLA provides that if a covered employer (one who has more than 50 employees) is in compliance with FMLA's posting requirements and also provides the requisite information to employees (in an employee handbook, for example), the employer may require 30 days' advance notice from employees of the need for leave, if the leave is foreseeable and advance notice is practicable. But if 30 days' notice is not practicable due to an emergency, to a change in circumstances, or to another inability to predict the need for leave, notice must be given as soon as practicable.

Generally, "as soon as practicable" means as soon as possible and practical, considering all the facts and circumstances. If the leave is not foreseeable, it is generally expected that notice will be given within one or two working days. Employers are not permitted to disallow or delay FMLA leave if the employee gives timely oral or written notice.

Furthermore, employers may not require compliance with stricter internal notice policies than those required for other types of leave. For example, if the employer allows or requires that vacation leave run concurrently with FMLA leave, and the employer's vacation policy imposes no prior notification requirements, the employer cannot require advance notice for FMLA leave. In short, if the employer has less stringent notification requirements for other types of unpaid leave, the employer cannot impose the lengthier notice requirements otherwise allowed by FMLA.

What does this mean to employers? It means that an employer cannot impose policies that interfere with employees' FMLA rights. Specifically, an employer is prohibited from (a) requiring written notice or certification for a paid FMLA leave if the employer does not normally require it for other types of paid leave, (b) negatively factoring use of FMLA leave in decisions regarding promotions, disciplinary actions, or other employment actions, or (c) counting such leave in "no fault" attendance policies.

A case decided on October 10, 2003, by the Sixth Circuit Court of Appeals helps to clarify this issue. In Cavin v. Honda of America, the employer's internal policies required employees to call security to report a one-day absence. If the absence continued beyond one day, employees were required to contact "Administration-Leave Coordination." If the need for leave was unforeseeable, a request for leave was required to be submitted "no later than three consecutive workdays of the first day missed." Failure to follow the requirements could result in discipline up to and including discharge.

Cavin was injured in a motorcycle accident on June 21, was treated in the emergency room, and was excused from work until June 24. He called security to report his injury and his anticipated return date. The next day he received treatment from a second doctor, who advised Cavin not to return to work until June 28. Cavin called security every business day during his absence and returned to work on July 6. On July 7, the employer disallowed a portion of the leave (June 21-23) because Cavin had failed to call the leave coordination department (rather than security) within three consecutive workdays. Cavin was disciplined and warned that any future violation of company policy would result in discharge.

Cavin continued to suffer from his injury and took intermittent leaves. The employer approved two leaves but denied the last one because Cavin's doctor had not provided a complete certification. When the company fired Cavin for a second violation of the company's internal leave policy, he sued the employer for violating his rights under FMLA.

The court ruled in the employee's favor, holding that "the FMLA does not permit an employer to limit his employee's FMLA rights by denying them whenever an employee fails to comply with internal procedural requirements that are more strict than those contemplated by the FMLA." The court found that the employer had interfered with the employee's rights by enforcing its notice requirements to deny him benefits (leave from June 21-23), and the absence constituted a negative factor in the decision to terminate.

In another ruling, a court held that the employer's policy "that employees call within thirty minutes of the beginning of their shift is inconsistent with the FMLA and is inapplicable to employees requesting FMLA qualifying leave." Mora v. Chem-Tronics, Inc.

Employers are advised to review internal policies to determine inconsistencies with the FMLA. Managers, supervisors, and administrators must be educated about the pitfalls of holding employees to a higher standard for FMLA leave notice than is required for other types of leave.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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