Long-time readers of this blog know that employers can require employees to report an FMLA-covered absence twice – once to the FMLA administrator and once to another source for attendance purposes. A recent case out of the Sixth Circuit, Render v. FCA US, LLC, brings home the point that an employer must clearly communicate that a call to both numbers is required or the dual call-in procedure may be "rendered" useless. (OK, pretty lame.)

Check out our prior blog discussing dual-notice procedures: FMLA and Employee Dual-Notice Procedures – Stand Your Ground but Be Clear about Your Policies | Matrix-Radar

Absent Again!

Edward Render started working for FCA, LLC, in January 2013. In September 2014, he was terminated for attendance infractions but was later conditionally reinstated after filing a union grievance. Under the terms of the conditional reinstatement letter, FCA could terminate Render's employment if he incurred two unexcused tardies or one unexcused absence within the next year.

About six months after his reinstatement, Render applied for intermittent leave under the FMLA for his own serious health condition (depression and anxiety disorder). He provided supporting medical certifications forms and was conditionally approved to take intermittent leave up to four days per month.

Render received two separate letters from FCA's third party leave administrator managing his FMLA (not Matrix!). The court described the letters as "conflicting."

The first letter required that Render report all absences and tardiness to two separate numbers: the third-party leave administrator (a 1-800 number) and the FCA Service Center (a 1-888 number).
The second letter only provided the 1-800 number and not both phone numbers.

Render was absent and/or tardy on December 6, 7, and 8 and January 5. According to FCA, Render did not clearly communicate that these tardies/absences were due to FMLA qualifying reasons as he used words such as "sick" "having a flare up...and [didn't] feel good." FCA also argued that Render did not follow its dual call-in policy as he only called one of the two required phone numbers to report his tardies/absences.

According to Render, all tardies and absences were related to his FMLA leave. Further, Render testified that he believed he only had to call one phone number (the 1-800 number) to report FMLA absences and did not realize there was a second number.

On January 11, Render was terminated for unexcused tardies and absences that exceeded his conditional reinstatement letter. As a result (of course), he filed a lawsuit alleging FMLA violations.

Decision

On Render's FMLA interference claim, the issues were whether Render complied with: 1) the FMLA notice requirements in the regulations; and 2) FCA's dual call-in procedures.

Under the unforeseeable leave regulation, 29 C.F.R. §825.303(b), an employee, after receiving FMLA approval, must specifically reference either the qualifying reason for leave or the need for FMLA leave each time. Calling in “sick” is insufficient to trigger an employer’s obligations under the FMLA. For the foreseeable leave regulations, 29 C.F.R. §825.302(a), formal notice needs to be given only one time.

First, the court found that FMLA notice requirements relating to foreseeable leave rather than the "heightened notice requirements" needed for unforeseeable leave applied. The court noted that the foreseeable leave regulation included specific procedures applicable to intermittent leave where the unforeseeable leave regulation did not.

The Court found that Render initially provided proper notice of his FMLA qualifying reason and as a result, just had to advise FCA of his absences on the days he wanted to use intermittent leave. According to the court, "Render was under no obligation to cite the reason for his absence with such specificity because he had already given FCA formal notice of his qualifying condition." And further, even if the "heightened" notice applied, the court found that Render's use of the term "flare-up" was sufficient to notify FCA that he was trying to use his approved intermittent FMLA leave.

Second, the court recognized that employers may deny FMLA leave if an employee fails to follow their call-in procedures, which may include dual call-in requirements. However, in Render's case, the court found that the requirement to call into two call-in lines was not clear.

To make matters worse, FCA's own Human Resources representative was confused about the call-in requirements. At her deposition, she first testified that employees only needed to call the 1-800 phone number to report FMLA absences; but, after seeing the letter with two phone numbers, changed her position and testified that employees needed to call two numbers, the 1-800 number and the 1-888 number. The court stated that that the letter was so confusing that even FCA's own human resources representative "could not decipher what it was asking employees to do."

Accordingly, the court found that the case could not be dismissed and could be heard by a jury.

Lessons Learned

Get the facts. When an employee who has an approved FMLA certification calls in "sick" or due to a "flare up," ask questions. Get as much information as you can and document it.
Check your policy and notices. Make sure your policy is clearly and consistently communicated to your employees. Under the law, an employer can establish call in procedures and, if the employee fails to follow them, discipline the employee. Further, the leave may be delayed or denied and may not be protected under the FMLA. Had the letter to the employee contained both phone numbers and clearly explained the call-in requirements, the court may have very well decided differently.
Educate your staff. Make sure your HR managers and supervisors understand your policy. The court was not impressed that the internal HR representative was not clear on the proper call-in policy and requirements. This contributed to an unfavorable decision.

Matrix Can Help!

We can be your FMLA-reporting call-in line! Matrix offers integrated state and federal leave of absence, ADA, and disability management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.