Employee not responding to FMLA notices, loses FMLA protection

Good news for employers! A recent Oregon court case demonstrated the importance of following the required FMLA notices to eligible employees and the consequences to an employee that ignored the notices to his detriment. Employees that fail to follow the employer’s usual and customary notice requirements for requesting FMLA leave, will ordinarily not be eligible for the law’s protections. Read why the court granted summary judgment for the employer.

What are the important lessons for Florida employers?

  • Implement absence notification policy.  Employers may require an employee to call or email their supervisor, a third-party administrator or report to the human resources department.  Having a standard notification process assists with administering FMLA.
  • Inform employees about the absence notification policy.  Whether the policy is contained in the Employee Handbook, or provided to employees electronically, maintain written documentation showing that employees received notice of the policy.
  • Require sufficient absence detail from employees.  Employees should not be allowed to submit vague requests without sufficient information to determine if FMLA is implicated.  It should be standard practice to follow up on vague doctor’s notes and leave requests.
  • Ask employee about unusual circumstances.  The FMLA regulations contains a loophole for employees to bypass employer usual notice policies in unusual circumstances.  So, employment lawyers recommend that employers ask employees why they ignored the employer notices and standard procedures.   According to the Employer’s Guide to the FMLA (DOL) whether the employee’s notice of unforeseeable leave is timely will depend upon the facts of the particular case.  No examples are given.

Bottom line. The court made clear that the FMLA does not prohibit employers from disciplining employees, up to and including separation from employment, for non-compliance with notice requirements.  FMLA is not violated if an employee is required to take an additional step to contact a third-party administrator managing FMLA.  In Oregon, the employer prevailed because it had a customary notice policy and the employee did not follow it.  The employee had actual notice of the policy and failed to submit sufficient information (he called off work and submitted 2 doctor’s notes) about his need for FMLA.  Since the employee could not show that he provided proper notice to the employer, he lost his case.

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