Suit based on notice of intermittent FMLA absences will go to trial

Employers, don't be too rigid about employee notice requirements.

Weird case from the U.S. Court of Appeals for the Sixth Circuit.

Imagine this: You're the HR manager at a manufacturing facility. An hourly employee has lousy attendance and is fired. The union gets involved, and you and the union end up agreeing that he can come back in "probationary" status, but if he has a certain number of unexcused absences, he's history.

The employee then comes back to work. After about a month on the job, he calls your third party administrator and asks whether he is eligible for leave under the Family and Medical Leave Act. The TPA tells him, no, you're about 1,150 hours short of the required 1,250 hours. After that, he's tardy once. (Strike One.) Four months later, he checks in again, and this time he has 1,298 hours, so he's eligible. He then says he needs FMLA leave. 

This sounds a little fishy, but he turns in a legitimate medical certification saying he has major depression and generalized anxiety disorder, and may have to be out of work three or four days a month when he has a "flare-up." The TPA approves him for intermittent FMLA leave. The TPA also sends him an incomprehensible letter about his FMLA rights and how he must provide notification of his absences to both the employer and to the TPA. But the letter doesn't tell him how to notify the TPA. Or maybe it does. Somewhere. Who knows? If the information is in there, it's buried.

In December, a little less than a month after he is approved for FMLA leave, he's out for two full consecutive days and tardy on the third consecutive day. He notifies the employer twice but doesn't mention "FMLA" or the conditions that qualified him for intermittent FMLA leave. He does say that he's having a "flare-up" and that he doesn't feel well. He says he notified the TPA on one day, but the TPA has no record of a contact. The TPA logs the time as "unexcused." (Strikes Two, Three, and Four.) Under the probationary deal, this is enough for him to be terminated for attendance.

But the day of his return to work, he tells you (the HR manager) that the time off was covered by the FMLA. You check with the TPA, who tells you he didn't notify them that he was taking FMLA leave on those days. You check with the person in your company who answered the phone on two of the days that he called in. The calls are recorded. He never mentioned FMLA leave. You check with your "Attendance Manager," who also says he didn't mention "FMLA." 

This guy is a major pain. He was fired once for poor attendance, and you had to bring him back only to avoid an issue with the union. He apparently didn't tell anyone in December that he was out for an FMLA-covered reason, except you, and maybe his supervisor -- after he was back at work.

Should you fire him now for violating the terms of his probation? Ehhhh . . .. Darned union. Instead, you count the absences against him, but you postpone termination.

In January, he's out one more day. Five strikes, and he's out.


You fire him. The union won't even administer his grievance. You are on solid ground.

Or, are you?

The lower court thought so. The lower court found that he clearly didn't provide notice that the absences were FMLA-qualifying. Therefore, you were within your rights to fire.

The employee appeals, but you're feeling good. Then you get the decision from the appeals court.


All three judges on the Sixth Circuit panel find that his FMLA interference and retaliation claims will have to go to trial.

What went wrong?

In the view of the appeals panel, here is why the case will go to trial:

First, there was the problem of the incomprehensible TPA letter with alleged "instructions" on how to provide proper notice of an intermittent leave absence. (Employers, please review and edit the communications that your TPA wants to send to your employees. If you can't make head or tail out of them, then there is a very good chance that your employees can't, either.)

Second, there was the fact that the employee had already been pre-approved for intermittent FMLA leave, that he did tell his HR manager that he was out for an FMLA-qualifying reason, and that he also apparently mentioned it to his supervisor. Yes, it was after the fact, but not by much -- he did it on the day he returned to work. Maybe they could have given him the benefit of the doubt?

Third, there was the fact that he reported in a timely manner that he was having a "flare-up." He didn't say exactly what was flaring, but that, coupled with his medical certification that said his depression and anxiety would "flare up," was enough to put the employer on notice that he was out for an FMLA-qualifying reason. 

As far as the retaliation part of the case was concerned, the court said that the employee had clearly exercised rights under the FMLA by applying for it in the first place and then invoking it after returning from his December absences. Then he was terminated only a short time afterward. (In my opinion, this part of the court's decision was a stretch, but nobody asked for my opinion.)

What can employers learn from this case?

First, monitor your TPAs. Make sure that the communications they are sending to your employees are comprehensible, and that any instructions are clear, easy to follow, and consistent with your policies and actual practices. If they read like insurance policies, they're not going to accomplish their purpose.

Second, don't be afraid to question or even overrule your TPAs. In this case, the employee told his HR manager and his supervisor that his leave should have been covered by the FMLA. When the HR manager learned that the TPA had categorized his absences as "unexcused," she might have tried asking the TPA, "Is it possible that you made a mistake? Or that there was a miscommunication? Can we look at this again and make sure it shouldn't have counted as FMLA leave?" Or even tell the TPA, "With all due respect, based on information that we got directly from the employee, we want to count this time off as FMLA leave."

Third, beware of being too rigid about FMLA intermittent leave. Whether you have a TPA or not, don't be overly rigid or technical about employees' notice obligations. If the employee failed to dot every "i" and cross every "t," but you're pretty sure that the time off really did qualify, then consider approving the leave. That is better than denying the leave despite your personal knowledge, firing the employee for poor attendance, and then getting a lawsuit followed by a smackdown from the courts.  

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
Continue Reading



Back to Page