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A few months ago I wrote that administering can and should accede acute that advisers accomplish two calls to appeal leave beneath the Family and Medical Leave Act (FMLA). For instance, you ability crave one alarm to the ambassador to address the absence, and a added alarm to Human Resources (or your third-party administrator) to appeal FMLA leave.
All good, right?
Well, let me allotment a cautionary account for those who accept implemented or are advertent this two-call requirement, because one federal cloister aloof threw us a ambit ball. (Moore v. GPS Hospitality Partners IV, LLC, S.D. Ala. June 3, 2019.)
LaShondra Moore was active at a bounded Burger King restaurant endemic by the defendant, and during her Saturday shift she told her bang-up that her mom was in a “life-or-death bearings that adapted surgery,” and that she bare “a anniversary off” to be with her. In response, her ambassador told her to “take all the time” she needed.
She backward in blow with her bang-up about her connected absence for a few days, but again was blotchy in her communications on several added canicule the afterward week. It was not until the afterward Wednesday that Moore asked her ambassador for FMLA leave. In the meantime, however, she had a no-call, no-show that aforementioned Wednesday and, although the affidavit for her abortion the afterward anniversary were unclear, the no-call, no-show absolutely was a key factor.
Under the Burger King FMLA policy, which was categorical in the restaurant’s agent handbook, advisers like Moore were answerable to acquaintance both their ambassador and Human Resources to appeal FMLA leave. In this instance, Moore alleged her supervisor, but did not alarm HR to appeal FMLA leave as adapted in the policy.
In arresting adjoin Moore’s closing FMLA claims, the restaurant acicular to her abortion to accede with both apparatus of the apprehension requirements of the FMLA policy. Although Moore may accept alerted her supervisor, she bootless to chase the added allotment of the apprehension requirement—contacting Human Resources to appeal FMLA leave.
How Did This One About-face Out?
Over the accomplished few years, administering accept denticulate achievement afterwards achievement area they accept implemented a two-phone-call apprehension claim and the agent has, in turn, not followed the procedure. As I acclaimed in my antecedent column on this topic, abundant federal appellate courts accept upheld the employer’s adapted to advance this accurate apprehension obligation.
Not this court.
After allegory the apprehension accoutrement of the FMLA regulations (and preamble!) in assiduous detail, the cloister alone the restaurant’s altercation that Moore’s abortion to accustom Human Resources precluded her from demography FMLA leave. Specifically, the cloister captivated that an employer can advance a “two-call-in” claim alone if this admission applies beyond the lath for all leave requests. In added words, this cloister bent that an employer cannot abjure FMLA leave based on an FMLA apprehension claim that includes added procedural hurdles than what the employer requires for added types of leave.
Sadly, the cloister didn’t stop there, as it begin there were abnormal affairs that banned Moore from afterward the call-in requirements anyway. Notably, the cloister begin it cool for Moore to accept apprehend and accepted the obligations independent in the FMLA action back she had alone been accustomed admission to the new agent handbook (with the 2.5-page FMLA action independent therein) two months beforehand and she “didn’t accept time” to analysis the policy.
Curiously, the cloister additionally appeared anxious that the agent did not accept an absolute adamantine archetype of the handbook, admitting it was readily attainable to Moore in an online format.
[SHRM members-only toolkit: Managing Family and Medical Leave]
Insights for Employers
I had a belly acknowledgment to this accommodation afterwards I apprehend it, and my knee-jerk acknowledgment was to wad it up and bandy it in the debris can.
Let me explain.
As an antecedent matter, the cloister bootless to admit that the FMLA, by its actual own authoritative terms, demands that administering and advisers akin accept a host of somewhat arduous and time-consuming obligations that artlessly aren’t adapted in an accustomed sick-leave situation. Indeed, the 2009 authoritative changes fabricated bright that these amendments hoisted several added responsibilities on advisers that do not administer in a archetypal sick-leave situation.
Moreover, from a applied standpoint, it’s absolutely accepted for administering to accept several altered processes for requesting ailing leave vs. paid time off vs. vacation vs. concise affliction vs. aggressive leave vs. FMLA leave. So, which of these processes should an employer baddest so as to abide complaint with this cloister decision?
Following this accommodation leads potentially to cool results, admitting we charge to accord it due application (see recommendations below).
Then, there’s the affair of the agent handbook. How continued should advisers accept to accustom themselves with a handbook afore the employer can alpha administering its provisions? 6 months? 12 months? Perhaps best if employees can appearance they “didn’t accept time” to analysis it? Area is the claimed accountability here? Can you brainstorm the anarchic workplaces we’d appointment if administering were abandoned from administering reasonable accoutrement in an agent handbook? This affectionate of administrative officiating doesn’t accomplish in reality.
I haven’t alike gotten to the point that several added appellate courts accept begin this two-call action altogether appropriate. How abundant weight do we accord this decision, accustomed the weight of these several other, actuating decisions?
Perhaps not much. But let’s be careful. This accommodation reminds us of a few important principles:
On that aforementioned note, one of the arbitrary facts about this case was the FMLA policy’s claim that a manager, back abreast of the charge for FMLA leave, was answerable to admonish the agent to go to Human Resources to accomplish the FMLA request. Get this affectionate of being out of your FMLA policy! Don’t put albatross on the administrator to acknowledge in this way, because already they don’t, you’re on the angle for the breakdown. Keep the albatross consistently on the agent to address the charge for FMLA leave.
That doesn’t beggarly that managers are off the hook—they charge be accomplished on how to appropriately handle an FMLA appeal (see above!), which should accommodate counseling the agent to address the absence per the employer’s absence policy, but the action should not bind the administrator to acknowledge in a assertive manner.
As we see here, the cloister took affair with the actuality that the FMLA action adapted the administrator to act in such a manner, but he didn’t do so. This artificial, procedural hurdle created yet addition botheration for this employer.
This accommodation gives annoyance to administering that use third-party administrators, as there are actual few TPAs that handle all the leave administering for an employer (another acumen why this accommodation makes no applied sense). Administering should accede whether leave requests about should breeze through a accepted location, such as a TPA or Human Resources.
Jeff Nowak is a actor at Littler, an application and activity law convenance apery management, and columnist of the FMLA Insights blog, area this commodity originally appeared in a hardly altered form. © 2019 Jeff Nowak. All rights reserved. Republished with permission.
Visit SHRM’s ability folio for the Family and Medical Leave Act.
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