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Family and Medical Leave: Employees Take Note, And Give Proper Notice

On Behalf of | Sep 26, 2013 | Family Medical Leave Claims |

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Under the Family and Medical Leave Act (“FMLA”), an employee may be entitled to take unpaid leave when the employee or a loved one suffers from serious health issues that require an extended absence or reduced work hours.  An employee who qualifies for FMLA leave is entitled by law to take the necessary leave without fear of losing his or her job, or facing other consequences.  In fact, the FMLA expressly prohibits an employer from retaliating against employees who request or take FMLA-covered leave.

When an employer interferes with an employee’s rightful FMLA leave, the employee could have an actionable legal claim.  However, to successfully sue, the employee normally will need to prove that he or she gave the employer proper notice.  Thus, if an employee wishes to take FMLA leave or to file a claim against an employer for interfering with FMLA leave, the employee had better know what qualifies as “proper” notice.

Under the FMLA, an employee must give the employer 30 days’ notice before taking FMLA leave.  However, the statute makes an exception in cases where advance notice is impossible.  In such cases, an employee must provide notice to the employer as soon as circumstances allow.  Seems simple enough, right?  Not so fast.

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Relying on revised FMLA regulations, the Sixth Circuit recently ruled that an employer can enforce its personal notice and procedural requirements, even if the employer’s procedures are far more burdensome than what the FMLA requires.  In fact, unless there are unusual circumstances that justify an employee’s failure to comply with internal notice requirements, the oversight could cost them their job.

Case in point: In White v Dana Light Axle Manufacturing, LLC, employee White filed suit alleging FMLA interference after he was terminated for failing to follow his employer’s call-in requirements.  Company policy required employees to call a specific hotline before the start of their shift each day to report if they would be absent.  White made the understandable mistake of believing that he was exempt from the call-in requirement because he previously notified HR and management that he would be taking extended, FMLA-protected leave.  However, when White failed to call in each day according to company policy, he was sacked….er… deemed “involuntarily resigned” from his position.

The Court held that the termination was not a violation of the FMLA:

Thus, in light of the revisions to § 825.302(d), we hold that an employer may enforce its usual and customary notice and procedural requirements against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee’s failure to comply with the employer’s requirements. Here, White has produced no evidence demonstrating the type of “unusual circumstances” that would have justified his failure to follow the call-in requirements of Dana’s attendance policy. Furthermore, despite White’s personal impression, there is no evidence that Dana waived its call-in requirements for White during his October absences. Therefore, we hold that regardless of whether White provided sufficient FMLA notice to Dana during the September 30 meeting, Dana was nevertheless justified in terminating White’s employment for his failure to follow the call-in requirements of Dana’s attendance policy.

It’s pretty easy to see how an employer might abuse this potential loophole to unfairly retaliate against employees who request or take FMLA leave.  It’s important to know your employer’s notice requirements, but if you feel your employer is being unreasonable and interfering with your right to take FMLA leave, seek legal advice.  The employment attorneys at Spitz, The Employee’s Law Firm, will continue to follow these developments and remain up-to-date on any changes that might affect our clients.

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA), you should call the right attorney as quickly as possible to schedule a free and confidential consultation.  The phone number for FMLA help is 866-797-6040.  While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.


The materials available at this employment law website are for informational purposes only and not for the purpose of providing legal advice. Your best option is to contact an Ohio attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm or any individual attorney.

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