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6th Cir. Defines Foreseeable vs. Unforeseeable FMLA Intermittent Leave – 5 Key Takeaways

December 14, 2022

When is intermittent leave foreseeable or unforeseeable as it relates to employee notice requirements under the federal Family and Medical Leave Act (FMLA)? While those terms are not defined in the FMLA or its implementing regulations, the 6th Circuit Court of Appeals, in Render v. FCA US LLC, recently provided clarity as to how these terms should be interpreted. Here is a summary of the case and 5 key takeaways.

Case Summary

Mr. Render was an assembly line worker employed by an automobile manufacturer. The employer used a third-party administrator, Sedgewick, to manage employee FMLA requests. In October of 2017, Mr. Render applied for and was ultimately approved for intermittent FMLA leave. Correspondence from Sedgewick gave Mr. Render conflicting information on whether to call Sedgewick or the Employer to report an absence. Thereafter, Mr. Render had a series of absences and tardies that he called in on his employer’s attendance line (not Sedgewick’s) in which he alluded to a “flare up.” Prior to proceeding to termination, the employer exchanged a series of e-mails with Sedgewick to determine whether Sedgewick had approved Mr. Render’s leave as FMLA, Sedgewick responded that the days were not coded as FMLA on the employer’s timesheets. (We hope you are picking up on the circular nature of these discussions). Mr. Render was ultimately terminated for his unexcused tardies and absences and he filed a lawsuit against his employer for FMLA interference and retaliation.

The district court granted summary judgment to the employer on both claims and the Sixth Circuit Court of Appeals reversed the district court’s decision. According to the court, the determination of whether Mr. Render provided adequate notice to the employer was dependent upon whether his need for FMLA leave was foreseeable or unforeseeable; that determination governs which FMLA notice requirement applies to the employee. Recognizing those terms are not defined in the FMLA or implementing regulations, the court held that “the difference between foreseeable and unforeseeable is knowing when leave will be needed before the time comes to request it.” The court provided the hypothetical example of an employee who needs intermittent FMLA leave on certain days of the week for dialysis (foreseeable) versus an employee who needs periodic time off for chronic migraines that are difficult to predict but can occur several times a month (unforeseeable). The timing of the determination was also clarified by the court as follows—the key factor for determining foreseeability is whether the timing of the leave was anticipated (such as regularly scheduled weekday treatments for dialysis).

The Sixth Circuit Court of Appeals then ruled that Mr. Render’s intermittent leave was not foreseeable and therefore, the notice requirement for unforeseeable FMLA leave applies. Under this notice requirement, an employee provides different levels of notice depending on the employee’s history of taking FMLA leave: if seeking leave for the first time, the employee need not expressly assert his/her rights under the FMLA or even mention the FMLA, however, if seeking leave for a reason already qualified under the FMLA the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. The court explained that merely calling in sick without providing more information is not considered sufficient notice to trigger FMLA protections for the absence. That being said, the court sided with other appellate court decisions in acknowledging an employer’s knowledge is relevant to assessing the adequacy of notice for unforeseeable leave. Taking into consideration this inquiry, the court determined that Mr. Render did give sufficient notice of his unforeseeable intermittent leave when he called in for flare-ups.

Key Takeaways

  • Coordinate administration of FMLA leave. Third-party leave administrators can be a valuable tool to employers who either do not have the expertise or the employee numbers to manage and administer employee FMLA leaves. That being said, employers are ultimately responsible for FMLA administration and cannot rely on an administrator’s leave determination when it has additional information that could inform approval decisions. We now know that information on the certification shared with the employer and words used by employees to explain an absence both matter to the proper administration of FMLA leave.
  • Clearly communicate call-in procedures. In general, employers can establish call-in procedures, and they may deny FMLA leave if an employee fails to follow those instructions. See 29 C.F.R. § 825.302(d). But an employee cannot be faulted for failing to comply with company policy if the policy is unclear or the employee lacked notice of the policy. We suspect the outcome of this case would have been different if the employer had reminded the employee, in writing, of the correct call-in procedures prior to proceeding to termination.
  • Distinguish between employee notice requirements based on foreseeability. If leave is unforeseeable, and it is the first time the employee is seeking leave for an FMLA-qualifying reason, they are not required to assert FMLA rights or even mention the act. On the other hand, if the leave is foreseeable and the employer already provided the employee FMLA leave, the employee must expressly reference the qualifying reason for the leave or the need for FMLA leave.
  • Educate your team on the importance of knowing the basis of the need for FMLA leave. An employee may not need to expressly state that they are taking intermittent FMLA leave in order to comply with notice obligations if the employee references his or her ailment or symptoms that were listed as the reason for leave.
  • When in doubt, ask. Better safe than sorry, so to speak. If an employee whom you know is on intermittent leave calls in an absence that indicates no reason for the absence, do not assume it is unexcused. While that ultimately may be the determination, you would be well served to make the extra effort to seek clarification and document those efforts. It serves as great evidence to refute an FMLA claim.

For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our Labor, Employment & Immigration Law Practice Group.

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