FMLA Notice Requirements for Employees

Employers may require employees to comply with both the Family and Medical Leave Act’s regulatory notice requirements and the company’s policy notice requirements, and a recent case from the U.S. Court of Appeals for the Sixth Circuit provides guidance on both.

In Render v. FCA US, LLC, the employee sued for violations of the Family and Medical Leave Act following his termination for attendance violations. Although the employee was approved for intermittent FMLA leave, the employer argued that he had failed to provide adequate notice of his use of such leave in connection with certain tardy arrivals and absences, as required by the FMLA regulations. It also argued that he failed to comply with the company’s own call-in procedure, as the FMLA regulations permit employers to require.

The Sixth Circuit rejected the employer’s arguments. With regard to the regulatory notice requirement, the FMLA mandates employees to notify their employer of their intent to take FMLA leave. In addition to the initial notice of a qualifying need for leave, the regulations also provide as follows: “When an employee seeks leave due to a FMLA-qualifying reason, for which the employer has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for leave or the need for FMLA leave.” In this case, although the employee may not have specifically referenced the FMLA each time he called out, he did say that he had a “flare-up,” which was the same term used in his FMLA medical certification. As the Sixth Circuit stated, “naming a symptom of the qualifying condition would be sufficient” to meet the regulatory notice requirement.

The regulations further 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.” If an employee fails to follow these requirements, FMLA leave may be denied. In this case, however, the employer provided inconsistent and confusing information about whether the employee needed to call both the leave administrator and the employer itself each time he took FMLA. Thus, the Sixth Circuit found he could not comply because of the confusion, but had made an effort to do so.

There are several lessons for employers here. One is that an employee calling out for pre-approved intermittent FMLA need not actually state “FMLA,” as long as they provide sufficient information about their qualifying condition – such as referencing a symptom of the condition. The other lesson is that employers should ensure that any internal call-in policies are clear and consistent.