Can an employer deny an employee her FMLA rights where she fails to comply with the employer’s in-house FMLA procedures?
In a recent decision, the Fifth Circuit Court of Appeals wrestled with whether an employee’s failure to strictly follow her employer’s in-house FMLA procedures – which were more stringent than what is required under the law – justified the employer in denying the employee’s FMLA leave and terminating her for excessive absences.
In that case, Saenz v. Harlingen Medical Center, the employer had a third party FMLA administrator. The employer required employees who were approved for intermittent leave (sporadic or irregular leave depending on when the condition flares up, when treatment or doctor’s appointments are, etc.) to call the third party administrator no later than two (2) days after each time that the employee took leave. Employees, including the employee at issue, Shauna Saenz, were warned that failure to call the administrator within two days of the absence could result in the loss of FMLA protection.
Ms. Saenz had applied for, been approved for, and used intermittent FMLA leave pursuant to a seizure disorder. Each time she took a day of intermittent leave due to this disorder, she called the third party administrator within two days. All of the documentation approving her various requests for leave for her seizure condition included a warning / reminder that she must contact the third party administrator within two days of an absence in order for the absence to be considered FMLA-protected. Ms. Saenz was reminded of this requirement by her supervisor as well.
Less than a year after applying for intermittent FMLA leave due to her seizure disorder, Ms. Saenz began experiencing symptoms of severe depression / mental illness. She missed work due to these symptoms from December 29 – 31, 2006 and January 3-4, 2007. During this time period, she went to the emergency room and was admitted to two in-patient treatment centers. She was released from the second treatment center on January 2, 2007, and was released into her mother’s care. During this treatment, Ms. Saenz was diagnosed with bipolar disorder and depression.
Ms. Saenz’s mother contacted Ms. Saenz’s supervisor twice during this time period to inform her of Ms. Saenz’s medical condition, her treatment, and her inability to work. She also contacted the third party administrator once (on December 28th) to advise the administrator of Ms. Saenz’s medical condition and absence.
On January 9, 2010, Ms. Saenz personally contacted the third party administrator regarding her absences from December 29 – 31, 2006 and January 3-4, 2007. During that telephone call, she informed the third party administrator of her new mental diagnoses and of her in-patient treatment during her absences. She also requested FMLA intermittent leave due to these mental conditions. On January 18, 2007, Ms. Saenz was terminated due to “non-FMLA related absences.” The employer determined that her absences from December 29 – 31, 2006 and January 3-4, 2007 were non-FMLA related since she was required to contact the third party administrator within two days of her release from the in-patient treatment center (on January 2, 2007) and failed to do so until January 9, 2007.
The court considered whether Ms. Saenz’s failure to strictly comply with the employer’s two-day notice requirement relieved the employer of its duty to provide Ms. Saenz with FMLA protected leave. It concluded that it did not. The court based its decision on three factors. First, it found that Ms. Saenz and her mother had provided the employer and the third party administrator with enough information for them to be on notice that she was missing work due to an FMLA-qualifying medical condition. Second, Ms. Saenz did not affirmatively refuse to comply with the employer’s in-house procedure. Rather, her mom made several efforts to contact the employer and third party administrator and Ms. Saenz contacted the third party administrator herself to apply for leave, even if it was later than the two day requirement. Finally, Ms. Saenz’s knowledge of the employer’s FMLA procedures did not justify the employer’s finding that her failure to strictly comply with them stripped her off her FMLA protections. She did not consciously refuse to comply with the procedures and she had persuasive reasons for straying from them. (These reasons include the fact that she was hospitalized; the fact that she was suffering from a severe episode; the fact that she was placed under judicially created guardianship for several days; and the fact that she was released into her mother’s care. In other words, her condition was severe enough to justify straying from the employer’s strict policy).
Employers are permitted to implement FMLA policies that are stricter than what is required by law. However, employers should be aware that they cannot automatically deny an employee her FMLA rights for failure to comply with those stricter policies in every situation. An employer must weigh whether the employee gave sufficient notice that the leave was FMLA qualifying; whether the employee affirmatively refused to comply with its procedures, or merely could not comply due to the severity of the condition/episode; whether the employee consciously refused to comply with its procedures; and whether she had good reason for straying from the procedures.
If an employee has been denied her FMLA rights due to her failure to comply with her employer’s FMLA policy, she should contact an attorney immediately to determine whether the denial was legal. Failure to comply with an employer’s FMLA policy may not be enough to justify a denial of FMLA rights.