Sixth Circuit Clarifies FMLA Intermittent Leave Rules

The Sixth Circuit Court of Appeals, whose decisions are binding in Michigan, recently declined to dismiss an employee’s Family and Medical Leave Act (FMLA) intermittent leave interference claim. Render v FCA US, LLC, 53 F.4th 905 (CA 6, 2022). The decision clarifies FMLA rules applicable to intermittent leave and highlights the importance of clear FMLA policies and procedures.

Background

FCA used a third party, Sedgwick, to process its FMLA leave requests. After FCA-employee Edward Render requested intermittent FMLA leave, Sedgwick sent Render a letter mandating medical documentation to support his FMLA leave request. The letter stated that Render must report FMLA absences by calling FCA.

Render sent Sedgwick a medical certification stating that intermittent leave was medically necessary to manage Render’s major recurrent depression and generalized anxiety disorder. The certification also stated that during “flare-ups,” Render would be unable to perform any job duties.

Sedgwick later sent Render a second letter approving intermittent FMLA leave. As with the first letter, the second letter directed Render to report FMLA absences by calling FCA. The second letter, however, also stated that Render must call Sedgwick on his first FMLA absence day “at the number listed below”; the letter did not list a number for Sedgwick.

Render called FCA on various days to report absences and tardies, stating either that he had a “flare-up” or was “sick.” FCA marked all absences and tardies as “miscellaneous unexcused.”

When a supervisor notified Render that his absences and tardies were unexcused, Render spoke to an FCA human resources representative. The representative contacted Sedgwick, inquiring whether Render was “FMLA approved.” Sedgwick responded that the absences were not FMLA-approved because they were not marked as “FMLA” in FCA’s system. Render then was discharged for the unexcused absences and tardies.

Render filed a lawsuit against FCA, arguing that FCA violated the FMLA by interfering with his FMLA rights. The Sixth Circuit declined to dismiss the lawsuit.

FMLA Interference

To establish FMLA interference, an employee must prove, among other things, that (1) the employee was entitled to FMLA leave, (2) the employee provided the employer with notice of the employee’s intent to take FMLA leave, and (3) the employer denied FMLA leave. FCA only disputed the notice element, asserting that it properly denied Render’s leave because he failed to comply with FMLA notice requirements.

FMLA regulations state that an employee “giving notice of the need for FMLA leave does not need to expressly assert rights under the [FMLA] or even mention the FMLA to meet his or her obligation to provide notice.” Instead, an employee must make the employer aware that the employee’s leave may qualify for FMLA leave, such as a statement that the employee is under the continuing care of a health care provider.

Additional notice requirements apply, but they vary depending on whether the employee’s leave is foreseeable or unforeseeable. The Court concluded that because only regulations applicable to foreseeable leave mention intermittent leave, foreseeable leave notice requirements apply to all intermittent FMLA leave requests.

The regulations applicable to foreseeable leave state: “notice need only be given one time, but the employee shall advise the employer as soon as practicable if dates of scheduled leave . . . were initially unknown.” FCA argued that Render failed to meet this standard because Render’s call-in statements typically failed to put FCA on notice that his absences and tardies may qualify for FMLA leave. The Court held that Render met the standard because he was required to provide notice only once, which he did when he initially applied for FMLA leave. After the notice was provided, Render was only required to “advise” FCA of anticipated absences, which he did.

FCA further argued that FMLA regulations allow an employer to require an employee to comply with the employer’s “usual and customary notice and procedural requirements for requesting leave,” and Render failed to comply with such requirements. Specifically, FCA claimed that Render failed to comply with the call-in requirements specified in Sedgwick’s letters because he only called FCA (not both FCA and Sedgwick) to report absences and tardies.

Although the Court acknowledged that an employer can deny leave if an employee fails to follow the employer’s usual and customary notice and procedural requirements for requesting leave, the Court determined that an employee “cannot be faulted for failing to comply with company policy if the policy was unclear or the employee lacked notice of the policy.” The Court observed that Sedgwick’s letters were so confusing that even FCA’s human resources representative was unsure whether the letters required Render to call both FCA and Sedgwick to report absences and tardies. The Court concluded that Render could not be faulted for failing to comply with Sedgwick’s conflicting letters. Accordingly, the Court held that Render provided sufficient evidence to establish that FCA interfered with his FMLA rights by inappropriately denying him FMLA leave.

Although an employer is typically permitted to negate an employee’s interference claim by proving a nondiscriminatory reason for the alleged interference, the Court concluded that opportunity does not apply when an employee alleges that the employer wrongfully denied FMLA leave.

To reduce the potential for FMLA claims, school officials are encouraged to review their school’s FMLA leave policies and procedures for clarity and consistency. For Thrun Policy Service subscribers, Board Policy 4106 contains an FMLA policy, while Administrative Guideline 4106 contains FMLA procedures. Schools should assign responsibility for processing FMLA leave requests to staff familiar with both the FMLA and the school’s FMLA polices and procedures. Failure to do so could result in costly lawsuits.