A federal appellate court just hooked you up with three tips to erase FMLA abuse



(Although, technically, I’m the one hooking you up because you’re reading them here in this blog post. But, who’s counting?)

Ok, fine, thank you, Eighth Circuit Court of Appeals, for this opinion. It involves a woman who missed a lot of work. Too much work, as the case may be, and lost ended up losing her job because she accrued too many attendance points.

But, along the way, she took intermittent leave under the Family and Medical Leave Act. So, yada, yada, yada, she ends up in court, and I’m here blogging about an FMLA lawsuit that didn’t go so well for her.

I’m going to focus on the Court’s analysis of the FMLA entitlement/interference claims. To succeed on an FMLA entitlement claim, the plaintiff had to prove: (1) she was eligible for FMLA leave; (2) that the defendant was on notice of her need for FMLA leave; and (3) the company denied her benefits to which she was entitled to under the FMLA.

Lack of Notice

FMLA regulations provide that an employee who fails to “comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances,” may have her “FMLA-protected leave . . . denied.” Indeed, the first issue with the plaintiff’s FMLA claim was that she never gave sufficient notice to the defendant of her intention to take FMLA leave.

After the defendant approved the plaintiff’s request for FMLA leave for her arthritis, it required her to following the company’s call-in procedure to report absences. The two-step procedure required the plaintiff to notify her supervisor that she would be absent from work and notify human resources that she was designating the absence as FMLA leave. If the plaintiff (or any employee) did not follow this procedure, she received an unexcused absence point.

Wouldn’t you know it, the plaintiff received points on three separate occasions for not following the callout rules, pushing her over the 10-point limit.

Once, she failed to call HR. The plaintiff argued that the two-tier call-out procedure was too strict. But, the appellate court disagreed.

The two other times, the plaintiff admitted that she did not identify that she was taking an FMLA day. The FMLA regulations are clear that calling in ‘sick’ without providing more information is not enough notice to trigger an employer’s FMLA obligations. Instead, the employee seeking leave for a qualifying reason “must specifically reference either the qualifying reason for leave or the need for FMLA leave.”

The appellate court noted that the defendant did not have to guess whether the plaintiff needed FMLA leave when she called in; she was required to invoke the FMLA affirmatively.

Leave beyond what the plaintiff’s doctor certified

You know what? I’m closing in on 500 words here. Let’s pick this up tomorrow…

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