Intermittent Fmla Calling Off for the "Care of Family Member"
FMLA and Employee Dual-Find Procedures – Stand Your Ground But Exist Clear About Your Policies
A collaborative postal service past:
- Megan Holstein, Esq., Senior Vice President, Absenteeism & Claims Product, FINEOS
- Gail Cohen, Director, Employment Constabulary and Compliance, Matrix Absence Direction
- Marti Cardi, Esq., Vice President Product Compliance, Matrix Absence Management
QUESTION: Can an employer require an employee taking FMLA leave to written report absences to both a supervisor and a go out administrator?
Reply: It depends – but probably yep. Read on!
The Upshot
Employers are struggling with the trend in rise employment fourth dimension off benefits caused by the numerous new country laws requiring chore-protected go out and increasing company leave benefits due to competition for workers. In response, many employers have strengthened their absence policies. Whether the employer outsources absence management or insources with a centralized administrative or human resource (Hr) section, an employee must provide notification that they need fourth dimension off in order for that leave to exist approved and not counted against the employee'south attendance record.
The federal Family and Medical Exit Human activity (FMLA) regulations accost employee notification by requiring an employee to "comply with the employer's usual and customary notice requirements for requesting leave, absent unusual circumstances." 29 C.F.R. §825.302(d); §29 C.F.R. 303(c). The FMLA supports employers who have a reporting notice policy by allowing an employer to filibuster or deny FMLA leave if an employee does not comply with the employer'due south policy and no usual circumstances justify the failure to do so. Accordingly, many employers' absence find requirements or FMLA policies require an employee to contact both a supervisor and a centralized absence assistants office, whether that is an internal Hour or Benefits section or outsourced to a third party ambassador (TPA); otherwise known every bit a dual-notice, or two-party call in policy or process.
Employees have contested dual-notice policies in court challenge they violate the FMLA by interfering with their correct to take FMLA exit. Courts have historically supported employers dual-notice policies. Even so, a recent Alabama commune court conclusion, LaShondra Moore v. GPS Hospitality Partners IV, LLC, declined to follow other courts' back up and instead found that an employer's dual-notice policy that required employees to contact both Hour and their manager when reporting absences violated the FMLA. While this decision is an outlier, at that place are notwithstanding lessons to learn from the case. Read on to larn more than about courts' approaches to dual-notice policies and whether the DOL might weigh in.
Bad Facts Brand Bad Law.
LaShondra Moore worked for a Burger King franchise that was i of nearly 200 purchased by GPS. The new owner required the employees of the purchased locations to complete new paperwork, including reviewing and acknowledging the employee handbook. The handbook included GPS'southward FMLA policy and the requirement to study FMLA absences to store managers and to the centralized HR role. When Moore's mother became ill and was hospitalized, she informed her director multiple times of her need to take time off from piece of work to care for her female parent. In spite of awareness that Moore's absences were the outcome of her female parent's hospitalization, Moore's director issued disciplinary action and ultimately terminated her due to these absences.
Ms. Moore sued for FMLA interference in federal court. GPS based its defence force on its employee handbook, which set along an FMLA policy requiring the employee to notify their supervisor and Hr of their need for FMLA leave.
The Court's Approach to GPS's Dual-Find policy.
Citing the FMLA notice regulations allowing an employer to require an employee to comply with its notice requirements for requesting go out, the court took great exception to the notion that GPS's policy required employees to do more – notify both a supervisor and HR – to request FMLA than other types of leave. Essentially, the court found that employers can simply maintain a dual notice reporting policy simply if the policy applies to all types of leave requests, non but FMLA.
This Case is an Outlier.
Several courts that have heard claims by employees who have been disciplined for non following their employer's dual reporting policies take drawn conclusions opposite to the Moore court. Hither is a sampling of those cases:
- 3 rd Circuit – Eastward.D. Pennsylvania – IBW v. PPL Electrical Utilities Corp. (December 2017) – Relying on the Acker case (discussed below) and last no FMLA violation in connection with employer policy requiring employees to study absences to their supervisor and "make a three to 5 infinitesimal telephone call to a tertiary party administrator."
- five thursday Circuit – Acker 5. General Motors, LLC (April 2017) – Judgment in favor of the employer on FMLA interference and retaliation claims when employee failed to follow GM call-in procedures, of which he was reminded by GM's TPA. In doing and then, the court noted that "[f]ormal notice of absenteeism policies serve an employer'due south legitimate business interests in keeping apprised of its employees and ensuring that it has an acceptable workforce to acquit out its normal operations."
- half dozen thursday Excursion – Srouder v. Dana Calorie-free Axle Mfg. (2013) – 6th Circuit affirmed the judgment in the employer'south favor on an interference claim and that the termination of the plaintiff'due south employment was appropriate considering he failed to comply with the employer's telephone call-in policies.
- Besides in the Sixth Excursion, Alexander v. Kellogg U.s.a. Inc., (January half-dozen, 2017), the courtroom over again rejected an FMLA interference claim challenging the termination of employment on the basis of the plaintiff's failure to report intermittent FMLA absences to both his employer and its TPA.
- vii thursday Circuit – N.D. Indiana– Reese five. Zimmer Production, Inc. (September 2018) – The court concluded that the employee failed to comply with his employer'due south policy, which required him to notify his supervisor and the company'south TPA to initiate a request for FMLA.
- 9 th Circuit – Duran v. Stock Building Supply West, LLC (Jan 2017) – The courtroom held that the employee's failure to complete an internal LOA request form and provide certification to the employer'southward TPA, both mandated by its customary notice policies, doomed his FMLA/CFRA interference and retaliation claims.
Also in the 9th Circuit, the about contempo example – Rozairo v. Wells Fargo (D. Oregon, July 17, 2019) in which the court relied on the employer's policy requiring employees to talk over their request for get out with their manager and phone call its TPA, finding the employee who failed to comply with that policy for initiating leave could not state claims for violations of FMLA or Oregon's state equivalent, the Oregon Family Leave Deed.
Will the U.S. Department of Labor (DOL) Weigh In?
The DOL announced that it is considering revising the FMLA regulations past announcing its plans to publish a request for information (RFI) next bound to solicit comments to improve the FMLA regulations in ii ways:
- Meliorate protect workers; and
- Reduce employers' FMLA compliance and administrative
We think this area of the FMLA regulations governing an employer's ability to set up forth absence notice policies and procedures is ripe for further clarification.
For more data regarding the DOL's plan to publish an RFI, read Megan Holstein's blog, "Changes to the FMLA are on the horizon" and our friend, Jeff Nowak, has a blog here.
Pings for Employers:
- The weight of authority supports that an employer can require employees to written report FMLA absences to two sources.
- But, information technology may non be plenty to simply place your absence asking policy in the employment handbook. Employers should broadcast the policy in ways employees tin can access it, including:
- highlight the policy on a company intranet and transport e-mail reminders;
- post the policy and FMLA posters in the breakroom and whatever other venue in which employees may besiege;
-
- consider holding informational meetings about all of your benefits, including FMLA and other get out benefits and how to asking the time off; and
- if using a TPA, engage the TPA as a source and additional reason for farther outreach to employees. Make sure they understand who your TPA is, what purposes they serve, and how to contact the TPA.
- Keep your dual-notice policy simple and clear. Exercise not require employees to be FMLA, state go out, or benefits experts to navigate your policy. They don't demand to know when leave is FMLA and therefore the TPA must be contacted or, for example, when information technology'south a common cold and only a managing director needs notification. Instead, streamline the policy to notice categories such as reasons for leave (eastward.k., holiday, care of family member, employee illness, parental leave, etc.) and/or duration of exit (e.g., absences of fewer or more than 3 days).
- On the other hand, practise train your director to be issue spotters and recognize when an employee's request might be time off for an FMLA-qualifying reason. Managers not only need to spot when a request may exist covered by the FMLA, merely they must know the reporting policy and exist able to inform the employee how to correctly report an absenteeism under the policy so that the request can be evaluated by the right people, such as a TPA or Hr. Then teach them to hand the consequence off to those right people and non try to handle it themselves – they should be grateful for that!
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Source: https://www.fineos.com/blog/fmla-and-employee-dual-notice-procedures-stand-your-ground-but-be-clear-about-your-policies/
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