By Fiona Ong
In a helpful case for employers, another federal appellate court has reiterated that employees who fail to comply with the employer’s notice and information protocol for leave will not be protected under the Family and Medical Leave Act.
The FMLA regulations provide that “an employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” In addition, the regulations also state that “”[f]ailure to respond to reasonable employer inquiries regarding [a] leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.” If an employee fails to follow the employer’s notice requirements or to provide required information, FMLA leave may be denied.
In Munger v. Cascade Steel Rolling Mills, Inc., the employee had a medical incident at work and went to the hospital. He then emailed two doctor’s notes to his employer, indicating that he was treated and could return to work, but the notes contained no further information. He was directed to contact the third-party FMLA administrator, but did not do so. He was then told that there was an issue with his leave and instructed to follow up with Human Resources. He also failed to do that. He was then terminated for attendance violations. He sued for violations of his FMLA rights. However, the U.S. Court of Appeals for the Ninth Circuit found that, by failing to contact the FMLA administrator and to respond to the employer’s requests for information, he “lost the right to FMLA protection.”
This case reminds employers that they can set up additional notice requirements for FMLA leave, and that they can enforce them. But as we discussed in [Shaw Rosenthal’s] November E-update, it is important to make sure that the protocol is clear and consistent.