Establish and Enforce Clear FMLA Reporting Mechanisms
This was the lesson from a recent case from the U.S. Court of Appeals for the Fourth Circuit, in a case under the Family and Medical Leave Act where the employer allowed communications beyond what was specified in its written policy.
In Roberts v. Gestamp West Virginia, LLC, the employer had written attendance and leave policies that required employees to notify their group leader of absences or late arrivals via a call-in line at least 30 minutes before their shift begins. Failure to do so for three consecutive shifts was considered job abandonment. In the current case, the employee’s group leader had communicated with him about an absence for medical reasons by Facebook messenger. The employee and his group leader then engaged in multiple communications over the app about the employee’s appendectomy and resulting complications, for which he received FMLA leave. Following his return to work, the employee experienced additional complications that resulted in his missing additional time from work. He sent multiple messages to his group leader by Facebook messenger regarding his status. However, he was terminated for job abandonment, since he failed to comply with the written call-in procedure.
Under the FMLA, “[a]n employer is expressly allowed to require employees to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” The FMLA regulations provide examples of requiring employees to call a specific number or contact a specific individual, and leave may be delayed or denied for an employee’s failure to comply.
But what is “usual and customary”? The Fourth Circuit found that it was not limited to an employer’s written policy, but could also encompass “methods of providing absentee notice that an employer has accepted as ‘a pattern or course of conduct to date’ or ‘by custom.’” Because the employee had previously communicated with his group leader about absences for which FMLA was granted by Facebook messenger, the Fourth Circuit found that it was possible for a jury to find that this type of informal notice was also “usual and customary.”
So, a best practice for employers is to establish clear, written policies that set forth specific reporting procedures for absences and other missed time, including FMLA-covered situations. But it is equally important to ensure that managers and supervisors are trained to use and enforce those written procedures.