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Notice the Leave, and Leave with Notice: FMLA Recent Developments

By now, we all (hopefully) have our Family and Medical Leave Act (FMLA) procedures down to a science. After 12 years of practice, most employers are very familiar with the basic eligibility standards, paperwork requirements, and timekeeping rules involved with this legislation. Recent case law, however, serves to define, limit, enhance, and sometimes confuse what you thought was standard procedure. From the moment an employee gives notice (or not!) of their need to take leave, to the time an organization asks them to leave with a severance package, the FMLA controls an employer’s options, as the cases discussed in this article instruct.

I. Employee Notice

The regulations governing the FMLA make it very clear that an employee does not need to expressly request FMLA leave or even mention the FMLA in order to be entitled to the leave. 29 C.F.R. 825.302 (b). However, employees are required to provide “at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave,” Id at (c).

One of the most troubling cases for employers came out of the Seventh Circuit in 2003, where the court ruled that an employee had given sufficient notice for his need for FMLA leave when he started sleeping on the job. In that case, Byrne v. Avon Products, Inc., 328 F. 3d 279 (7th Cir. 2003), Mr. Byrne had been a highly regarded and productive employee for more than four years. But one day a co-worker reported that he found Byrne sleeping in the break room. After some surveillance and an investigation, the company found that Byrne was spending a good part of his night shift reading and sleeping. The day that management planned to discuss the issue with Byrne, he left early, indicating he was not feeling well and would be out for the rest of the week. When the company tried to reach him at home, his sister told them that Byrne was “very sick.” When management finally talked to Byrne, he was somewhat incoherent, but agreed to attend a meeting to discuss his situation. He did not make it to the meeting and Avon subsequently fired him for not coming to the meeting and for sleeping on the job. For the next two months, Byrne received treatment for depression. When the company refused to put him back to work, he sued for violations of the Americans with Disabilities Act and the FMLA. The court ultimately said that “a sudden change in a person’s behavior may supply notice . . .” of the need for leave under the FMLA.

Fortunately for employers, not all courts have been so lenient toward notice requirements nor have they followed the Byrne rationale. In the Sixth Circuit, the court in Walton v. Ford Motor Co, 424 F.3d 481 (6th Cir. 2005), sided with the employer’s decision to terminate Mr. Walton after he failed to provide proper notice under the FMLA and company policy. In this case, Walton informed his supervisor that he was going to the plant’s medical department, and subsequently to a doctor’s appointment for a knee injury he incurred at home. Walton then missed several days of work and failed to call in to his supervisor, as required in company policy. However, it was later learned that Walton was calling in to the “security office” to say he would not be in. The court noted that the security office was managed by a third-party security company, and was not the proper avenue for an employee to give notice for leave, neither under company policies nor the FMLA. After the company attempted to reach Walton in writing, seeking information about his absences and the need for leave, Walton ignored the letter and was later terminated. He then sued for violations of the FMLA. The court upheld the termination, stating that Walton did not meet his obligation under the Act because merely reporting that he was going to the doctor for an injured knee and then calling the security office was not proper notice under the FMLA.

Most recently, the Fifth Circuit upheld summary judgment in favor of an employer in Willis v. Coca Cola Enterprises, Inc., No. 05-30047 (5th Cir. March 31, 2006), when the plaintiff employee could not introduce evidence that she had requested medical leave under the FMLA. In this case, Willis called in on a Monday to say she was sick and not able to come to work. She also mentioned that she was pregnant, but did not say she was sick because of her pregnancy. On Tuesday, the next day, she called in to find out where she should report to work, but her supervisor told her she could not come back until she received a medical release from her doctor. She told him she had a doctor’s appointment on “Wednesday.” The supervisor thought that meant the next day, but it was actually not until the following week. Willis made no contact with the company until the following week on Thursday, at which time she learned she was deemed to have voluntarily resigned under the no call/no show policy. She sued under the FMLA and Title VII, but lost on summary judgment. The court agreed with the company’s argument that one phone call saying she was “sick” (but with no claimed link between the sickness and her pregnancy) was not sufficient notice of the need for FMLA coverage. Unlike the court in Byrne, this holding requires specific information from the employee about his/her condition and intent before acknowledging that an FMLA notice is deemed to be triggered.

Management’s RealSolutions®:

  • If you see sudden changes in a person’s behavior, remember that they could be signs of a mental or medical condition that qualifies the employee for leave under the FMLA. Those sudden changes may be all the notice you need to inquire about the need for leave, especially if you operate in a state covered by the Seventh Circuit.
  • Exercise caution when you are notified of an employee’s absence. In the vast majority of cases, if an employee complains of being “sick” or in pain from a minor injury, there is no implication of a “serious health condition” under the FMLA; however, if you receive any information that makes you wonder if it could be a qualifying condition, you should;
    • 1. Make further inquiry;
    • 2. Provide the employee with notice of his/her FMLA rights; and
    • 3. Provide a physician certification form to the employee.
  • If a condition ends up not qualifying under the FMLA, you can always go back and change it retroactively, which is safer and more cost effective than not capturing the event from the beginning.

II. Medical Certification

At 29 C.F.R. 825.305, the DOL grants employers the authority to require FMLA-eligible employees to provide medical certification of their own or their family member’s health condition. This regulation states that employers must provide notice to the employees to provide the certification, and must allow at least 15 calendar days after they make the request for the employee to provide it. Once a certification is received, if an employer believes the certification is incomplete they must allow the employee a reasonable opportunity to “cure” the deficiency. Although the language appears straightforward, the following cases have highlighted a few nuances inherent in those regulations.

In Kauffman v. Federal Express Corporation, 426 F.3d 880 (7th Cir. 2005), Mr. Kauffman called in sick the first few days of 2002, and then brought in a doctor’s note when he returned to work on January 7. His immediate supervisor told him to apply for FMLA leave and gave him the paperwork, including a notice/request for medical certification. Instead of checking off the listed categories on the certification form, Kauffman’s physician wrote in “bronchitis,” and made notes about time needed off, a follow-up appointment, and the commencement date. The company subsequently terminated Kauffman, stating that, among other things, he had not provided adequate information for his leave on the medical certification form. The court determined that although the doctor did not follow the form exactly, the information he provided was enough to satisfy the statute. If FedEx believed the form was incomplete, it had a duty to “provide the employee with a reasonable opportunity to cure any such deficiency.” 29 C.F.R. 825.305.

The court faced a different scenario in Urban v. Dolgencorp of Texas, Inc., 393 F.3d 572 (5th Cir. 2005). There, the plaintiff requested time off for bilateral carpel tunnel surgery, requesting leave for all 12 weeks off as provided in the FMLA. The company notified Urban that it was designating her leave as FMLA-qualifying, and that it would be necessary for her to produce medical certification from her physician. The company gave her a deadline to return the certification and she requested and received an extension to provide it. However, she did not provide a certification by the extended deadline, and she was ultimately terminated. Urban claims that she left the medical certification with her doctor and assumed his office faxed it to the company, asserting she should have the opportunity to “cure” a deficiency in the form as provided in the regulations. This court ultimately held that the ability to cure a deficiency only applies to the situation where the certification was actually provided in the first place. It is the employee’s responsibility to make sure the employer receives the certification, and then he/she may have the opportunity to correct an incomplete or unclear form if requested to do so by the employer.

Frazier v. Honda of America Mfg., Inc., 431 F.3d. 563 (6th Cir. 2005) looks at yet another twist on the certification issue. It is undisputed in this case that on July 26, 2001, after receiving Frazier’s notice that he needed FMLA leave for wrist pain, the company provided him with oral notice to obtain medical certification for his condition. Subsequently, the employer sent Frazier a package with a written request for certification and other information, with an explanation that the certification be turned in within 15 days of the letter, which would have been August 14, 2001. On August 14, Frazier went to the doctor and had the doctor complete the form, which Frazier turned in the next day, on August 15. The company then suspended Frazier to conduct an investigation into the issues surrounding his leave, and ultimately terminated him for violating its leave policies. During trial, there was some argument over the fact that Honda’s written notice said “within 15 days of” rather than the regulatory language of “at least 15 calendar days after the employer’s request.” The court ultimately supported Honda’s decision to terminate Frazier, stating that the original oral notice was sufficient to start the 15 day period. The subsequent written notice did not supersede the oral, but served to extend the wait period, which is above and beyond what is required under the FMLA, as well as Honda’s own policies. The company, therefore, was correct in terminating the employee in the court’s determination.

Management’s RealSolutions®:

  • Ensure your organization’s FMLA policy requires employees to submit medical certifications;
  • As soon as an employee provides you notice of their need for FMLA leave, provide written notice to them immediately, requiring them to turn in their medical certification within 15 calendar days after receipt of such notice;
  • Explain in your notice that the employee may be terminated for failure to turn in the certification;
  • Once a certification is returned by the employee, look for deficiencies and request the employee to get it corrected or completed if necessary; and
  • CONSISTENTLY enforce your FMLA policy.

III. Paid Time Off

The court in Solovey v. Wyoming Valley Health Care System Hospital, 396 F. Supp 2d 534 (M.D. Pa. Oct. 13, 2005), confirmed what most organizations have been doing routinely in accordance with 29 C.F.R. 825.301(b). That is, employers must allow FMLA-eligible employees to use accrued vacation or other paid leave time during their 12 week FMLA period. In this case, however, a company’s vacation policy required an employee to provide a two-week notice before taking paid vacation. The plaintiff’s father grew terminally ill very quickly and the plaintiff took a few days off to spend with him. Her first day of leave was on June 23, 2003 and her father died on June 28, 2003. She did not have time to provide the two-week notice for vacation, but requested that she be paid her vacation pay during that FMLA leave. The company denied her request, stating that she was not due vacation pay because she did not provide the requisite notice. The court disagreed, holding that such an onerous requirement was contrary to the terms of the FMLA. Therefore, if your FMLA policy does not require an employee to use all their accrued paid time off before the unpaid portion of FMLA leave begins, you may not prohibit an employee from using such accrued time if they request it. The paid time off will run simultaneously with the statutory 12 weeks allowed off and will not serve to extend it.

Management’s RealSolutions®:

  • If your FMLA policy does not require an employee to use accrued time off prior to accessing their unpaid time, consider changing it to require employees to use all their accrued paid time off during the 12 week FMLA period. This practice is acceptable under the regulations and has provided many companies with significant cost savings.
  • Be reasonable with the requirement of advance notice. If an eligible employee is unable to give advance notice for FMLA leave, you may not prohibit the employee from using their paid time off simply because they did not provide the notice specified in an internal policy, collective bargaining agreement or handbook.

IV. Employees Returning to Work

Many consider the entitlement to return to work after taking time off to care for an employees’ own or a family member’s serious health condition or to care for a new baby to be the biggest benefit the FMLA has to offer. Nonetheless, exactly how and when one re-enters the work place after their time away has raised many questions for employers and employees alike.

In Hoge v. Honda of America Mfg., Inc., 384 F.3d 238 (6th Cir. 2004), the court held that an employee may not be required to take more time off than medically necessary, even if business conditions warrant an extension. In that case, Ms. Hoge worked on a production line at Honda’s assembly plant. Hoge had a documented back injury, and her position accommodated her limitations. Hoge requested and received FMLA leave for an unrelated condition. During her time away, Honda was conducting a “new model changeover” on its production line and temporarily eliminated the position Hoge previously held but intended to create a similar position once the changeover was complete. However, Hoge returned to work one morning unexpectedly, and Honda could not find a position that accommodated her physical limitations until a few weeks later. The defendant argued there should be a “reasonableness” factor involved in returning an employee to work if the employee is ready to come back sooner than originally expected. The court said even though her return was early and unexpected, the statute clearly states at 29 C.F.R. 825.309(c) that “an employer may require that the employee provide the employer reasonable notice (i.e. within two business days) of the changed circumstances where foreseeable.” Therefore, when she appeared ready for work that unexpected morning, Honda had at most two days to delay the restoration to an equivalent position.

While Hoge considered timing issues, Bloom v. Metro Heart Group of St. Louis Inc., 8th Cir. No. 05-2682 (March 16, 2006) considered performance issues involved with returning to work. Metro hired Bloom as an ultrasound sonographer, which required her to grip an ultrasound machine for the majority of the workday. A previously diagnosed case of carpel tunnel syndrome reoccurred after she was hired, which resulted in a doctor giving Bloom work restrictions, including limited gripping. Because she was not able to operate the machine for which she was hired, Metro placed Bloom on FMLA leave and notified her that she could not return to work without medical clearance. Bloom never submitted her fitness for duty certificate, and Metro terminated her at the end of her 12 week period, stating that she could not perform the essential functions of her job. The court agreed with the discharge, holding that an employer is not required to reinstate an employee under such circumstances.

Management’s RealSolutions®:

  • The best FMLA practices include consistent and continuous communication between the employee and employer about medical certifications, conditions of the leave, and return to work expectations. Use standardized forms and letters, and use them often and consistently.
  • The regulations anticipate that return to work dates may change, so prepare to be flexible. If an employee lets you know they are able and willing to return earlier than expected, you may only have two days to reinstate them to an equivalent position – even if business conditions warrant otherwise.
  • If an employee cannot perform the essential functions of her position after her FMLA leave is over, she is not entitled to reinstatement. Before terminating her in these circumstances, however, you should seek the advice of your employment counsel to be sure all notices have been given and that there are no other legal issues to consider, such as the Americans with Disabilities Act, Worker’s Compensation statutes, etc.

V. Waivers of Claims

If you are in the Forth Circuit (Maryland, North Carolina, South Carolina, Virginia or West Virginia), you need to take a hard look at your standard severance package language. The US Court of Appeals in Taylor v. Progress Energy, 415 F.3d 364, (4th Cir. 2005), held that release and/or waiver agreements which purport to waive employees’ FMLA claims, either prospectively or retroactively, are invalid without prior approval from either the Department of Labor or a court. While waivers of other statutory claims, such as Title VII, ADEA, and the ADA remain effective, FMLA claims are treated similarly to claims under the Fair Labor Standards Act (FLSA), and may not be waived without a court or DOL blessing. The court specifically disagreed with the 5th Circuit’s rationale in Faris v. Williams WPC-I, Inc., 332 F. 3d 316 (5th Cir. 2003), that the FMLA only impacts prospective claims. Therefore, this issue may ultimately need to be resolved by the U.S. Supreme Court before employers can be sure of what is safe to settle in the FMLA arena.

Management’s RealSolutions®:

  • Review or have your counsel review your organizations’s release and waiver agreements in light of these developments. Avoid catch-all phrases, such as “any other federal, state or local law” when trying to capture every possible claim, especially if you are in the Fourth Circuit.
  • Consider limiting your standard releases by including an acknowledgment that the agreement does not affect claims that cannot be waived by a private agreement.
  • If it is crucial to get a release from FMLA claims, seek legal guidance before requesting DOL or court approval. You could very well be opening a bigger can of worms than you are bargaining for!


The cases above are a sample of the various FMLA issues being tried every day in the various jurisdictions throughout the country. Although some of them amount to nothing, others can and do affect your policies and practices. The most important management tip is therefore this: The best policy manuals are in loose leaf three-ring binders – always ready for change!

1 The following table lists the districts and corresponding states within the US Courts of Appeals: 

1st - ME, MA, NH, PR, RI 
2nd - NY, VT, CT 
3rd - PA, NJ, DE, VI 
4th - MD, NC, SC, VA, WV 
5th - LA, TX, MS 
6th - MI, OH, KY TN 
7th - IL, IN, WI 
8th - ND, SD, MN, NE, IA, MO AR 
9th - CA, OR, WA, AZ, MT, ID, NV, AK, HI 
10th - CO, KS, NM, OK, UT, WY 
11th - AL, GA, FL 
DC - DC, Tax Court, fed admin agencies. 
Federal Patent, Int'l Trade, Claims Court and Veterans' Appeals.