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What Am I Doing Wrong? Common FMLA Mistakes

What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the sixteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not requiring an employee to follow customary call-in procedures for FMLA leave.

When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. 29 C.F.R. 825.303. For example, an employer may require employees to call a designated number or a specific individual to request leave.

In IBEW Local 1600 v. PPL Elec. Utils. Corp., 2017 U.S. Dist. LEXIS 210804 (E.D. Pa. Dec. 22, 2017), the employee was informed that she needed to call the employer’s third party FMLA administrator and her supervisor when calling off for FMLA leave. On a later date, the employee advised her supervisor that she needed to leave early, referring to FMLA time, but failed to also contact the employer’s third party FMLA administrator. As a result, the employer denied her request for FMLA leave for that day and recorded an unexcused absence on her record. The court determined that the employer did not interfere with the employee’s FMLA rights when it denied her FMLA leave. The court stated that the employer’s requirement of two phone calls to give notice of FMLA leave did not impose so great a burden on employees that it would discourage the employees from taking unforeseeable FMLA leave.

In Hunt v. Altec Industries, Inc., 2015 U.S. Dist. LEXIS 126210 (N.D. Ala. Sept. 22, 2015), the employee was terminated after accruing too many points for unexcused absences based on the employer’s attendance policy. The employee argued, however, that the absences were FMLA-qualifying and should not have counted against him. The employer’s leave policy was administered by a third party vendor, and mandated that all employees contact the third-party vendor to request a leave of absence. The court found that the employer did not interfere with the employee’s rights by terminating him, as the employee failed to avail himself of a protected right under the FMLA when he chose not to comply with the employer’s notice procedure of contacting the employer’s third-party vendor for FMLA-qualifying leave.

If an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, an employer may delay or deny FMLA-protected leave. However, employers should clearly include this requirement in an FMLA policy, so that the requirement is well communicated.

Jackson Lewis P.C. © 2020


About this Author

Sheri Giger, Jackson Lewis, human resource policy attorney, employment labor development lawyer,

Sheri L. Giger is a Principal in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. Her practice focuses on preventive human resource policy development, training and counseling and advice.

Ms. Giger also works on policy/handbook development, particularly for multi-state issues and compliance. She also works with compliance issues under the American with Disabilities Act, as amended, and the Family and Medical Leave Act, as amended. Ms. Giger counsels and conducts extensive training on topics such as anti-harassment...

Bryant Andrews, Jackson Lewis, employment lawyer

Bryant A. Andrews is an Associate in the Pittsburgh, Pennsylvania office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including preventive advice and counsel.

While attending law school, Mr. Andrews was an executive board member of Pittsburgh Tax Review, and was a member of the Pitt Law Moot Court Executive Board. Mr. Andrews was also team captain of the Earle Zehmer Workers’ Compensation Moot Court Team, and was a member of the Pitt Law Trial Competition Team. Mr. Andrews was a semifinalist in the 2015 Pitt Law Annual Negotiation Competition.

Prior to Attending law school, Mr. Andrews received a Proclamation for Community Involvement from the Allegheny County Council, and was an Omicron Delta Kappa Senior of the Year Award finalist.