June 03, 2019

In the case of: Policy v. Practice – The Employer Loses

An employer’s Family and Medical Leave policy instructs employees about their notice requirements. It reads, “[e]mployees should notify their supervisor and Human Resources for approval for a leave…[a]ll employees requesting FMLA leave must provide Human Resources with verbal or written notice of the need for the leave.”

An employee tells her supervisor and manager that she will need FMLA leave. When she fails to give HR the same information, she is fired for failing to follow procedure.  When the employee sued, alleging FMLA interference the employer filed a motion for summary judgment.  The judge denied that motion. Why?

The judge found (1) the relevant notice and procedural requirements are those governing leave generally, not FMLA leave specifically; and (2) the employer’s FMLA leave notice requirements may not be more stringent than for forms of leave.” In this case, the employer did not require an employee to contact Human Resources for any absence other than FMLA leave. Then what happened? Twenty-two days later, the parties settled out of court.

Lessons learned? Review your FMLA and other leave policies, including vacation. If you have provisions in the FMLA policy that are stricter than for other forms of leave, reconsider those provisions.  And, of course consult with your company’s employment counsel.