Recent 7th Circuit Case Cautions Employees to Provide Proper Notice

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The Seventh Circuit Court of Appeals, which encompasses Illinois, Indiana, and Wisconsin, recently decided a case which stands to remind employees of the importance of giving proper notice of the need for FMLA protected leave. Proper notice includes following all FMLA regulations as well as your employer’s specified procedures.

In Brown v. Automotive Components Holdings, LLC and Ford Motor Co. the employee, Leticia Brown, was a union member.  As a union member, Ms. Brown was subject to the policies and provisions of the collective bargaining agreement (“CBA”) in effect at the time of her termination. The CBA had specific procedures that an employee had to follow when seeking medical leave. Specifically, employees were required to fill out a specific form and return it to the employer by the date on which the leave was to expire.  If the employee sought an extension of leave, she also was required to fill out the form and return it to the employer before the leave was set to expire.  Under the CBA, if the employee seeking an extension failed to return the form by the date the leave expired, she would receive a “quit notice” which gave her five days within which to report to work or explain the reason for her absence. If she failed to do either within five days of the “quit notice,” she would be terminated.

Ms. Brown properly requested medical leave under the CBA procedures on August 11, 2006. Her leave was set to expire on August 28th. Ms. Brown became aware on August 21st that she would need an extension of leave.  In an effort to comply with the CBA leave procedues, Ms. Brown asked her doctor’s office to fax additional paperwork to her employer asking for an extension.  However, Ms. Brown did not follow up with the doctor or her employer.  The employer never received the additional paperwork.
Ms. Brown called her employer on August 30th and informed the employer of the needed extension. This was nine days after she first became aware of the need for the extension.  The employer stated that she needed to fill out the form required by the CBA.  Ms. Brown failed to do so.

On August 31st – after her leave had expired (on August 28th), the employer sent Ms. Brown a “quit notice” in accordance with the CBA leave procedures.  The “quit notice” stated that Ms. Brown had five days within which to report to work or provide proper verification of her need for leave extension.  Ms. Brown failed to timely retrieve her mail and did not immediately receive this notice, or a similar notice sent from her union. Therefore, she did not respond to the “quit notice” within five days and was terminated.  On September 12th, the day after she learned that she had been terminated, Ms. Brown faxed the required CBA leave form to her employer. Her employer refused to accept the delayed form.

Under the Department of Labor FMLA regulations, where leave is unforeseeable, an employee has two working days after learning of the need for leave to inform her employer of her need for leave. The Seventh Circuit found that Ms. Brown should have informed her employer of her need for extended leave within two days of August 21st (the day she realized that she needed an extension). Because she did not inform her employer within two days of August 21st, Ms. Brown did not give her employer proper notice under the FMLA regulations. The court found that she therefore could not prevail on an FMLA interference claim. It is important to note that the court specifically rejected Ms. Brown’s argument that since the CBA allowed five days to ask for an extension, she did not need to follow the two day notice rule under the FMLA regulations. The court held that the employer’s more lenient procedures did not operate as an automatic waiver to the FMLA notice regulations.

The court went on to state that even if Ms. Brown had abided by the two-day rule, the employer was still within its right to deny her continued leave since the FMLA regulations also allow an employer to require employees to comply with its “usual and customary notice and procedure requirements for requesting leave.” In other words, the FMLA regulations allow an employer to require that an employee follow its specific procedures with regard to requesting FMLA leave. If the employee does not follow those specific procedures, she can be denied her FMLA leave. Here, because Ms. Brown did not fill out the forms required under the CBA, and did not comply with the specific leave procedures specified in the CBA, the employer was not legally required to grant her request for extended FMLA leave.

There are several cautionary tales for employees in this case. First, when an employee asks her doctor or provider to fax or submit a form on her behalf, she should always follow up to ensure that the doctor actually did so and that the employer received the form. If the doctor does not submit the form on the employee’s behalf, the employer can deny the employee’s request for leave, even though it was not the employee’s fault that the employer did not receive the required information. An employee should always be diligent in following up with the doctor and the employer.  In the alternative, the employee should deliver the completed form to the employer herself.

Second, an employee should always notify her employer of the need for FMLA leave within two business days of realizing the need for leave. This two day rule should be followed even where the employer’s policies are more lenient in terms of time.  For example, if the employer’s policy requires an employee to give notice within four days of realizing the need for leave, the employee should still give notice within two days, in order to comply with the FMLA regulations.

Third, the employee should take care to follow the employer’s leave policies to the letter (except where the procedures are more lenient than the FMLA regulations).  If an employee needs to fill out a specific form, notify a specific person, call a specific phone number, etc., in order to obtain leave, he or she should always do so. Failure to follow the employer’s specific leave procedures, even if they are stricter than what is required under the FMLA, can be grounds for rejecting an otherwise valid FMLA request.

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