Voicemails Gave Adequate Notice of Intent to Take FMLA Leave, Court Ruled

Employers should weigh situation as a whole, including family health emergencies

By Daniel P. Schwarz © Jackson Lewis January 13, 2020
phone with voicemail

A terminated employee may proceed with his Family Medical Leave Act (FMLA) retaliation claim even though he never specifically requested leave under that statute, a Maine federal district court ruled in Waterman v. Paul G. White Interior Solutions (D. Me. Nov. 5, 2019).

The employee worked as a floor finisher and installer for a flooring company. His father had been diagnosed with several serious health conditions. On April 8, 2018, the employee's stepmother told him that his father's doctor advised that his father would "mostly likely die" if he did not immediately return to the doctor for tests and treatment. The employee had shared his father's worsening condition with his supervisor and two co-workers. However, he did not know that his father was near to death until the conversation with his stepmother.

The employee missed work to care for his ill father from April 9 to April 16. He left a voicemail with his supervisor on April 9. On April 10, he left a voicemail with a co-owner of the company explaining his father's situation. Neither the supervisor nor the owner responded to the employee's voicemails. When the employee did not appear for his shift on April 16, the owner sent him a Facebook message asking where he was. On April 17, the employee responded that his father was "still pretty bad off." Thereafter, the company terminated his employment.

The employee sued the company for retaliation in violation of the FMLA.

The company filed a motion to dismiss, arguing that the employee's absence was not protected under the FMLA because he had not provided prior notice of his intent to take leave under the statute.

[SHRM members-only content: FMLA Notice of Eligibility and Rights & Responsibilities (Form WH-381)]

Adequate Notice Inferred

The court denied the motion and allowed the claim to proceed, finding the complaint raised a plausible inference that the employee provided adequate notice of his intent to take FMLA leave. The court also found the complaint plausibly alleged that the employee's attempt to take FMLA leave and his termination were causally connected.

Employers should not split hairs when an employee takes time off from work for reasons that could come within the purview of the FMLA. No 'magic words' are needed in an employee's request for leave that might be protected by the FMLA. The best course is to look at the situation as a whole and, if the FMLA is implicated, take actions to allow the statutorily protected rights.

Daniel P. Schwarz is a principal in the Portsmouth, N.H., office of Jackson Lewis P.C., where his practice includes advising private and public sector employers on all aspects of labor and employment law. © 2020 Jackson Lewis PC. All rights reserved. Reposted with permission.

[Visit SHRM's resource page on the Family and Medical Leave Act]


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