Two Federal Appeals courts clarify Family Medical Leave Act (FMLA) rights on two growingly common issues:
1) How restrictive can personnel departments make the hoops for employees to jump through for notification of FMLA-leave claims?
2) Do partial-day absences count toward constituting a "serious health condition" justifying eligibility to claim FMLA-leave benefits?
The answers, coming respectively from the 6th Circuit Appeals Court (Ohio, Michigan, Tennessee and Kentucky) and the 11th Circuit Court (Florida, Georgia and Alabama) are as follows:
1) An employer cannot deny an employee FMLA leave because he erroneously reported his injury-caused absence to the wrong department, in violation of a single-reporting-source (HR administrator) internal company rule.
2) A "serious health condition" FMLA threshold requires that an employee be incapacitated for more than three consecutive full days—or 72 hours straight. Partial days do not count toward this eligibility threshold.
In the first case, the employer (Honda) had employee-handbook FMLA-leave request rules stating that employees:
- Reporting a vacation day or a one day absence or sickness could call the security office to notify the company;
- However, when an employee's absence continues beyond one day from work, he/she should notify Administration—Leave Coordination; and
- If the need for leave is unforeseeable, leave must be requested no later than three consecutive workdays after the first day missed. The first day missed counts as day one.
Also at Honda, whenever an employee fell below 98-percent attendance, he/she received mandatory counseling designed to ensure that employees understand the attendance policy. However, failure to comply exposed the employee to discipline. If an employee "is absent for three consecutive workdays without notifying Administration— Leave Coordination, he/she will be separated from employment." The plaintiff, Mr. Cavin, injured his right shoulder in a motorcycle accident.
He was treated and released the same day from a hospital emergency room, where the doctor gave him a written excuse for missing work for the next three days. Cavin called Honda's security office and reported his accident the first day of missing work.
Thereafter, he went to a second treating doctor who gave him a written excuse to miss work for four more days. Cavin stated that he called the company security office every day that he was scheduled to work to inform the company of his status. When he returned to work he finally notified the designated "Leave Coordination Department" of his need for leave of absence. His supervisor and coworkers, however, were well aware of his motorcycle accident all along.
Honda disallowed a portion of hisleave under the FMLA on the grounds that the absences were not approved because he had violated Honda's leave policy by failing to call the Leave Coordination department within three consecutive workdays of his first day of leave. Cavin missed work several more times in the months following his return and failed to submit a fully completed internally required corporate form for the medical certification of additional missed workdays. Honda then fired Cavin for twice violating the corporate leave rules.
The Appeals Court ruled that Cavin's notice (to security) was sufficient to apprise Honda of his "request to take time off for a serious health condition." The court reasoned that a FMLA regulation blocking complicated internal corporate-notice procedures for foreseeable leave absences also applied to unforeseeable absences that are verbally reported after the absence. The Department of Labor regulation reads:
"An employer also may require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave… However, failure to follow such internal employer procedures will not permit an employer to disallow or delay an employee's taking FMLA leave if the employee gives timely verbal or other notice."
This regulation protects employees who require emergency leaves of absence. The conclusion of the Ohio case: Employers cannot deny FMLA leave on grounds that an employee failed to comply with internal procedures as long as "the employee gives timely or other notice."
Employers should re-examine their employee handbooks and FMLA-notice rules to avoid absolute internal written or remote department barriers.
In the Florida case the Appeals Court upheld another Department of Labor rule specifically defining three calendar days or 72 hours or more of consecutive incapacity as required for a "serious health condition." That should be utilized in handbook eligibility rules (partial days do not count toward the initial three days of incapacity threshold).
Speaking of attendance/absence polices, employers should be careful not to count any FMLA-qualified absences as a discipline-based attendance point against any employee. This issue can come up in attendance "points" systems where so many points trigger discipline or termination. Employee handbooks should clearly state that adverse attendance points will not be assessed for FMLA absences.