Employee’s FMLA Notice Duties: Key Takeaways from Recent Ruling

Takeaway: The opinion indicates that the supervisor told the plaintiff to contact HR. The court does not indicate whether the supervisor mentioned the conversation to HR. A best practice would be to train supervisors to properly document conversations with employees that are related to the employee’s health conditions or potential absences to care for family members due to their health conditions. Employers should train supervisors to notify HR and upper management any time the supervisors recommend workers inquire about eligibility for a leave of absence.

Imagine you are a busy HR professional or business owner approached in the hall by an employee, Jill, while you are between meetings. Jill briefly mentions a need for “possibly getting FMLA for my Dad.” You nod at Jill and go on to your next meeting.

A few months later, Jill’s supervisor, Bob, asks for an investigation of complaints by Jill’s co-workers that she is taking overly long lunch breaks. An investigation reveals your company paid Jill for at least 99 hours that she did not work. Bob fires Jill.

Jill files a lawsuit asserting violations of the interference and retaliation provisions of the Family and Medical Leave Act (FMLA), claiming that she was caring for her ailing father during those lunch breaks and that Bob knew what she was doing.

What now? Has your company broken the law?

Maybe not—if your company has reasonable notice of leave procedures that Jill did not follow.

In a recent decision, the 5th U.S. Circuit Court of Appeals affirmed summary judgment for an employer against FMLA claims, holding that the plaintiff failed to demonstrate that she gave her employer adequate notice of her need or intent to take FMLA-qualifying leave. The court’s decision highlights the necessity and value of adopting clear procedures published to employees for requesting leave.

The plaintiff had worked for Blue Cube for many years. In 2017, she requested and took leave after rotator cuff surgery. She received FMLA leave for 12 weeks and then received additional leave for another 15 months. When the plaintiff returned to work, she told her supervisor that she was going to visit her ailing father during her 30-minute lunch breaks to “make sure he had his medicines and something to eat.” She told her supervisor that she could care for her father during her lunch breaks. But the plaintiff regularly took longer than the allowed 30 minutes to visit her father.

After the plaintiff had been doing this for several months, her supervisor suggested she ask HR about her eligibility for FMLA leave. Sometime in early 2020, the plaintiff approached Blue Cube's HR professional in a hallway as the HR professional was leaving another meeting. The plaintiff never discussed the matter with the HR professional again and instead kept taking lengthy lunch breaks.

In ruling for Blue Cube, the 5th Circuit emphasized that an employee must give their employer enough information for a reasonable employer to know that the employee needs leave or intends to take leave. The plaintiff’s comment about “getting FMLA for her Dad” was not sufficient to put the company on notice that she intended to take leave and that the leave was for a qualifying reason.

The appellate court further noted that an employer may condition approval of FMLA-protected leave on the worker’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances. In this case, Blue Cube prevailed based on the facts that the plaintiff had taken FMLA leave previously and thus was aware of the process, but failed to follow Blue Cube’s procedures for requesting leave after she made a comment about FMLA in passing to the HR professional.

One more thing helped Blue Cube—the supervisor expressly referred the plaintiff to contact the HR professional. The 5th Circuit noted that the supervisor’s knowledge of the father’s ailments coupled with his knowledge that the plaintiff was missing some work might have been enough to trigger the employer’s FMLA obligations, if the supervisor had not instructed her to contact HR.

Cerda v. Blue Cube Operations, 5th Cir., No. 23-40404 (March 19, 2024).

Scott Hetrick is an attorney with Adams and Reese in Mobile, Ala., and can be reached at scott.hetrick@arlaw.com.