Notice Requirements Under the FMLA: Federal Court Reinforces Employees’ Obligations to Follow Established Notification Procedures
On June 17, 2021, the U.S. District Court for the District of Oregon issued an opinion and order in Munger v. Cascade Steel Rolling Mills, Inc., addressing an employee’s claims under the Family and Medical Leave Act (FMLA) and an analogous state law after the employee’s separation from employment due to excessive unexcused absences. The principal issue before the court was whether the employee was entitled to FMLA leave when the employee had failed to follow his employer’s usual and customary notice requirements for requesting FMLA leave. The court granted summary judgment in the employer’s favor, reinforcing the point that an employee’s noncompliance with an employer’s notice requirements ordinarily precludes the employee’s entitlement to the FMLA’s protections.
Joseph Munger Sr. worked for Cascade Steel Rolling Mills, Inc., as a billet crane operator for more than 20 years. Cascade, a covered employer under the FMLA, maintained a written policy requiring all employees to contact Cascade’s third-party administrator directly to request medical leave. Cascade’s policy expressly provided that the submission of a doctor’s note would not automatically excuse absences. Cascade posted its medical leave policy in eight departments throughout the workplace and mailed copies of the policy to all employees, though Munger denied receiving a copy of the policy by mail.
In addition to its medical leave policy, Cascade maintained a written attendance policy whereby employees incurred attendance “incidents” for unexcused absences. Under Cascade’s progressive discipline policy, the accumulation of 9 incidents within a 12-month period would subject an employee to a termination of employment.
On May 25, 2016, while working a shift that had begun the previous evening, Munger left work early due to severe abdominal pain. He thereafter called off from work for two subsequent shifts and submitted two doctor’s notes to Cascade’s human resources department stating that he would return to work on May 27, 2016. Munger did not contact Cascade’s third-party administrator to request medical leave. By May 27, 2016, he had already exhausted his allotment of “sick vacation” hours offered by Cascade.
On May 31, 2016, Kimberly Bartlett, a staff coordinator for Cascade, sent Munger an email advising him that he should contact Cascade’s third-party administrator by the end of the day to request protected medical leave or he would receive three attendance incidents for unexcused absences. Because of Munger’s history of absences, the additional incidents would put Munger over the 9-incident threshold for termination of employment under Cascade’s progressive discipline policy.
On June 1, 2016, Cascade’s third-party administrator reported to Cascade that Munger had not made contact to initiate a request for medical leave. The following morning, Munger’s supervisors met with him and presented a notice stating that Munger would be issued three attendance incidents concerning his unexcused absences in May 2016. Munger told his supervisors that his absences were covered by the FMLA and the analogous state law, the Oregon Family Leave Act (OFLA). Munger also denied receiving Bartlett’s email on May 31, 2016, and he contended that he had satisfied the FMLA’s notice requirements by calling off from work and submitting doctor’s notes. Munger was ultimately discharged due to his accumulation of more than 9 attendance incidents within a 12-month period.
Following Munger’s discharge, United Steelworkers, Local 8378, which had served as the exclusive collective bargaining representative of all production and maintenance workers employed at the facility that employed Munger, pursued an arbitration action on Munger’s behalf. The union advanced many of the same statutory arguments that were later addressed by the court, including violations of the FMLA and OFLA. The labor arbitrator ultimately found in Cascade’s favor and upheld Munger’s termination of employment pursuant to the terms of the applicable collective bargaining agreement.
On June 1, 2018, Munger filed a lawsuit in the U.S. District Court for the District of Oregon alleging, in relevant part, interference and retaliation under the FMLA and OFLA. The parties filed cross motions for summary judgment.
The Court’s Analysis
The court began its analysis by noting that it would assess Munger’s FMLA and OFLA claims together, since Oregon law provides that “OFLA claims are to ‘be construed to the extent possible in a manner that is consistent with any similar provisions of the [FMLA].’” The court relied upon on the legal standards established under the FMLA to adjudicate the claims arising under both statutes.
The court focused its analysis on the validity and enforceability of Cascade’s notice requirements. The FMLA regulations, as cited by the court, expressly state that 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.” The regulations further provide, by way of example, that an employer “may require employees to call a designated number of a specific individual to request leave.” Case law cited by the court also made clear that the FMLA does not prohibit employers from disciplining employees, up to and including separation from employment, for noncompliance with notice requirements.
Munger attempted to distinguish Cascade’s policy from that allowed under the FMLA by arguing that Cascade’s policy discriminated against FMLA claimants. Specifically, Munger pointed out that under Cascade’s policy, requesting FMLA leave required an additional step—contacting a third-party administrator—that was not required to request other forms of leave. The court rejected this argument and clarified that “nothing in the text of the [applicable] regulation precludes an employer from requiring additional procedures for giving notice of FMLA leave.” The court also cited several cases in which courts had expressly held that policies requiring employees to contact third-party administrators to request FMLA leave (but not necessarily other forms of leave) did not violate the FMLA.
After determining that Cascade could lawfully discipline Munger for failing to follow its usual and customary notice requirements, the court found, based on the evidence, that Munger had actual notice of Cascade’s policy. The court also found that despite calling off from work and submitting two doctor’s notes, Munger had failed to provide information sufficient to put Cascade on notice of his need for FMLA leave, further undermining his claim.
Because Munger was unable to show that he had provided proper notice to Cascade, the court granted summary judgment in Cascade’s favor on the interference and retaliation claims under the FMLA and OFLA.
The Munger decision offers a few key lessons for covered employers regarding employee notice obligations under the FMLA.
First, employers may want to consider implementing absence notification policies, if they do not already have one in place. Whether the policy requires calling or emailing a third-party administrator, the employee’s supervisor, the employer’s human resources department, or some combination thereof, an absence notification policy can assist in administering FMLA leave requests and combating FMLA abuse.
Second, employers may want to ensure that employees are properly informed of any absence notification policy. If an employee does not have sufficient notice of the policy, the employee may argue that he or she was not required to comply with the policy. Employers may want to consider having employees sign their absence notification policies, posting their policies in the workplace, incorporating their policies in their employee handbooks, and disseminating their policies via mail and/or email. Reminding an employee of his or her absence notice obligations may also prove helpful.
Third, employers may want to review their absence notification policies for a requirement that employees provide information sufficient for employers to determine whether FMLA leave is needed. Vague requests for time off, even when submitted in the form of a doctor’s note, typically do not offer the information necessary to assess the applicability of the FMLA.
Finally, covered employers may want to remember that the FMLA regulations contain an exception to the “usual and customary notice” standard in instances of “unusual circumstances.” Employers might want to consider asking employees why they did not follow absence notification policies to ascertain whether any “unusual circumstances” exist that could give rise to the exception.