The 6th Circuit Court of Appeals has held that the Family Medical & Leave Act (“FMLA”) expressly permits an employer to enforce its usual and customary notice and procedural requirements for requesting leave. The decision in Srouder, et al v Dana Light Axle Manufacturing LLC, ___ F3d ___ (6th Cir 2013) was released yesterday and notes that the court’s previous decision on this issue in Cavin v. Honda of America Manufacturing Inc, 346 F3d 713 (6th Cir 2003) was effectively abrogated by subsequent revisions to the Act.
The plaintiff, Matt White, was reportedly terminated for failing to follow the call-in requirements of the defendant’s attendance policy. He sued, alleging interference with his FMLA rights. The district court ruled in favor of the defendant employer. Plaintiff appealed.
The 6th Circuit framed the issue on appeal as, “whether an employer may impose and enforce its own internal notice requirements, even if those requirements go beyond the bare minimum that would generally be sufficient under the FMLA to constitute proper notice.” The court immediately noted that it had previously addressed this
question in Cavin, supra, and that at that time, the relevant portion of the FMLA provided as follows:
The plaintiff, Matt White, was reportedly terminated for failing to follow the call-in requirements of the defendant’s attendance policy. He sued, alleging interference with his FMLA rights. The district court ruled in favor of the defendant employer. Plaintiff appealed.
The 6th Circuit framed the issue on appeal as, “whether an employer may impose and enforce its own internal notice requirements, even if those requirements go beyond the bare minimum that would generally be sufficient under the FMLA to constitute proper notice.” The court immediately noted that it had previously addressed this
question in Cavin, supra, and that at that time, the relevant portion of the FMLA provided as follows:
“An employer may . . . require an employee to comply with the employer’s usual and customary notice and
procedural requirements for requesting leave. . . . However, failure to follow such internal employer procedures will not permit an employer to disallow or delay an employee’s taking FMLA leave if the employee gives timely verbal or other notice.” [29 CFR § 825.302(d).]
The court had therefore held that an employer cannot limit his employee’s FMLA rights by denying them where an employee fails to comply with internal procedural requirements that are more strict than those contemplated by the FMLA.
The court noted, however, that due to material revisions in 2009, the above-referenced regulatory language is
no longer in effect and that the regulation now reads in relevant part as follows:
The court noted, however, that due to material revisions in 2009, the above-referenced regulatory language is
no longer in effect and that the regulation now reads in relevant part as follows:
An employer may require an employee to comply with the employer’s usual and customary notice and
procedural requirements for requesting leave, absent unusual circumstances. . . . An employee . . . may be required by an employer’s policy to contact a specific individual. Unusual circumstances would include situations such as when an employee is unable to comply with the employer’s policy that requests for leave should be made by contacting a specific number because on the day the employee needs to provide notice of his or her need for FMLA leave there is no one to answer the call-in number and the voice mail box
is full. Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied. . . . [29 CFR § 825.302(d) (emphasis added).]
Based upon these revisions, the 6th Circuit Court of Appeals held that the FMLA expressly permits an employer to enforce its usual and customary notice and procedural requirements for requesting leave. Noting that the plaintiff had not produced any evidence of the type of “unusual circumstances” that would have justified his failure to follow his employer’s usual and customary notice and procedural requirements for requesting leave, it
therefore affirmed the district court’s grant of summary judgment for the defendant.
- Disclaimers -
therefore affirmed the district court’s grant of summary judgment for the defendant.
- Disclaimers -
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