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Employer’s Additional Notice Requirement for Requesting FMLA Leave Dooms Attempt to Dismiss Employee’s Interference Claims

By Tasos C. Paindiris

Jackson Lewis P.C.

Employees who take FMLA leave may be required to comply with the employer’s usual and customary notice and procedural requirements for requesting leave. If the employee does not follow these requirements, the employer may delay or deny FMLA-protected leave. But what happens if the employer’s policy has different notice requirements for FMLA leave than for other time off? What if the FMLA requirements are more burdensome than the requirements for non-FMLA leave? In Moore v. GPS Hospitality Partners IV, LLC, etc., the United States District Court for the Southern District of Alabama tackles this issue (S.D. Ala. Jun. 3, 2019).

The employee repeatedly told her managers that she would need leave to take care of her hospitalized mother. Nevertheless, she was scheduled for work, and she received a warning for her failure to show up for work. After receiving the warning, Ms. Moore learned about the FMLA, and she decided to seek leave again. She informed her managers that she wanted FMLA leave. The employer’s policy required an employee to notify her supervisor and human resources to request FMLA leave. A manager provided Ms. Moore with information regarding the person in human resources to contact for FMLA leave. Ms. Moore claims she told the manager she was unclear on what to do with this information, yet she was not provided with any assistance. Ms. Moore was later terminated after she took additional time off.

Ms. Moore alleged that her former employer interfered with her FMLA rights and retaliated against her for exercising those rights. The employer argued that Ms. Moore failed to follow the “usual and customary notice and procedural requirements” for requesting FMLA leave. However, the defendant’s policy for other forms of leave only required employees to make requests to a supervisor and did not have the additional requirement of notifying human resources. The Court held that the requirements for requesting FMLA leave cannot be any more onerous than the requirements for requesting non-FMLA leave. The requirement that employees must follow “usual and customary notice and procedural requirements” to obtain FMLA does not permit employers to deny leave based on a failure to comply with more stringent notice requirements applicable only to FMLA requests. Here the only additional requirement for FMLA leave was to contact human resources in addition to the supervisor, yet that additional burden was enough for the Court to deny the employer’s attempt at dismissal of the claim.

Whether an employee complied with the employer’s usual and customary notice requirements is an issue that often arises in the context of intermittent leave and/or where the employer uses a third party to administer its FMLA. While the FMLA regulations clearly authorize employers to adopt “usual and customary notice and procedural rules for requesting leave, absent unusual circumstances,” this case suggests employers should closely review any such rules to determine whether they place impermissible additional burdens on employees seeking FMLA leave.

***This article originally appeared on the Jackson Lewis’ Disability, Leave & Health Management blog and was reposted on the DMEC website with their permission.***