Reversing summary judgment in favor of an employer in a Family and Medical Leave Act (FMLA) action, a panel of the U.S. Court of Appeals for the Sixth Circuit held that an employee was not required to provide details each time he requested to use his intermittent leave.
Assembly line worker Edward Render began working for FCA in 2013. He was terminated in September 2015 for attendance infractions, but filed a grievance through his union and was reinstated in April 2017.
Under the terms of his conditional reinstatement letter, FCA could terminate Render if he incurred two unexcused tardies or one unexcused absence during his one-year probationary period.
On October 24, 2017, Render applied for intermittent FMLA leave. His doctor submitted a medical certification that he needed intermittent FMLA leave to manage his major recurrent depression and moderate/generalized anxiety disorder, noting that Render was unable to perform “[a]ny/all duties related to [his] job during [a] flareup of symptoms.”
FCA conditionally approved the request for up to four FMLA leave days per month. Render received multiple letters from Sedgwick, FCA’s third-party leave administrator, with conflicting instructions about how to call in to use his intermittent FMLA leave days.
The first letter provided two different numbers to call, while the second listed only one of the two numbers for intermittent absence reporting.
Render believed that to use his FMLA leave he had to call only one of the two numbers and report his absence. On December 6, 2017, he called in to report he would be absent and said he was having “a flare-up,” adding “I don’t feel good at all.” He called in again the next day, but Sedgwick had no transcript of the call.
On December 8, 2017, Render called in tardy and said he had “been sick the last few days.” He called in tardy again on January 5, 2018, and said he was “having a flare-up right now and [didn’t] feel good at all.”
Each of the absences and tardies was marked by FCA as “MISU,” or miscellaneous unexcused.
Render was terminated on January 8, 2018. He sued FCA, accusing his former employer of wrongfully denying him FMLA leave and retaliating against him for requesting FMLA leave.
At his deposition, Render said he was “embarrassed” to specifically mention that he was suffering from anxiety and depression when he called in to report his absences and tardies.
FCA’s human resources representative gave contradictory statements at her deposition about how employees were required to report FMLA absences, and the record showed that the employer knew Render was claiming FMLA leave to cover his tardies and absences by December 8, when he returned to work and spoke with one of his supervisors.
A district court granted summary judgment in favor of FCA, ruling that Render had not properly requested FMLA leave.
The federal appellate panel reversed.
Beginning with the interference claim, the Sixth Circuit focused on the element of notice. Render’s intermittent leave was governed by the statute’s foreseeable leaves at 29 C.F.R. Sec. 825.302, the court said, which provides that “notice need only be given one time, but the employee shall advise the employer as soon as practicable if dates of scheduled leave … were initially unknown.”
“Therefore, Render did not need to give formal ‘notice’ each and every time he called in to use his FMLA leave,” the panel wrote. “Rather, the regulation indicates that he needed to meet the notice requirement when he first sought approval for intermittent leave because this was when FCA first learned about his qualifying condition.”
Render’s formal FMLA approval process satisfied the one-time notice requirement for intermittent leave, and his subsequent calls on the days he wanted to use his leave did not need to specifically reference either the qualifying reason for leave or the need for FMLA leave, the court explained.
“Render was under no obligation to cite the reason for his absence with such specificity because he had already given FCA formal notice of his qualifying condition,” the court said. Instead, he only needed to advise FCA of his schedule change on days that he wanted to use his intermittent leave.
Reviewing the transcript, where Render referenced flare-ups and said he didn’t feel good, the Sixth Circuit said the calls sufficiently advised FCA of his anticipated absences.
Further, even if the notice requirement applied to his subsequent calls, Render’s use of the term “flare-ups” would be sufficient, the panel added.
“Referencing symptoms and language that is used in an employee’s medical certification forms would be sufficient even if the notice requirements applied to each call in,” the court said. “When he called in absent, Render used identical language to that found in his FMLA certification forms. That was sufficient to meet his notice burden under any of the applicable regulations.”
As for FCA’s policy requirements, the panel recognized that employers can establish call-in procedures and may deny FMLA leave if an employee fails to follow instructions.
“But an employee cannot be faulted for failing to comply with company policy if the policy was unclear or the employee lacked notice of the policy,” the panel wrote. “In this case, Sedgwick’s letter was so confusing that even [the HR rep] could not decipher what it was asking employees to do.”
The Sixth Circuit also reversed summary judgment on Render’s FMLA retaliation claim. While FCA pointed to the tardies and absences as the reason for Render’s termination, Render told the court that his absences were incorrectly coded as unexcused, demonstrating pretext.
“A jury could find that [Render’s supervisor’s] errors were the only thing giving her a reason to terminate Render, given that his absences would have otherwise been excused,” the court said. “Indeed, the record shows that [she] terminated Render even though she knew that he was trying to use his FMLA days and that he was already conditionally approved for intermittent FMLA leave. Still, she refused to recode the absences as FMLA.”
To read the opinion in Render v. FCA US, click here.
Why it matters: Finding that intermittent leave is governed by the foreseeable leave regulations, the court determined that the employee satisfied the requirements when he referenced “not feeling good” and used language that mirrored his request for FMLA leave. Further, while the court recognized that employers can establish requirements for call-in procedures, the policy must be clearly conveyed to employees in order to be enforceable.