In Jackson v. U. S. Postal Service, the Court of Appeals for the Sixth Circuit has ruled that a medical certification under the Family and Medical Leave Act (“FMLA”) does not create a “hard cap” on the amount of unforeseeable, intermittent FMLA leave that may be taken by an employee.
Law. The FMLA entitles eligible employees to take up to 12 weeks of unpaid leave, including intermittent leave: (i) for one’s own serious health condition; (ii) to care for a seriously ill or injured spouse or dependent; (iii) for the birth, adoption or placement of a child; or (iv) to deal with “exigencies” related to their spouse’s military deployment. It also provides employees with up to 26 weeks’ unpaid leave to care for a spouse who has a military service-related illness or injury. Under the FMLA, an employer may require that an employee follow its customary practices for requesting leave. Discipline resulting from the employer’s failure to do so typically does not constitute interference with FMLA rights unless the employee can show unusual circumstances.
Generally, an employee must give 30 days’ advance notice for foreseeable leave, but if 30 days’ notice is not possible, e.g., because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given “as soon as practicable.”
Facts. An employee with sickle cell anemia received a medical certification from his healthcare provider stating that his illness required him to take two days of leave per month. However, the employee “routinely had unexcused absences.” After a warning, the employer claimed the employee still failed to attend work on numerous occasions without providing adequate FMLA notices or for no valid reason. The employee was subsequently terminated from his position.
The employee responded by filing a lawsuit, asserting claims for FMLA interference and FMLA retaliation. The district court found that he was not entitled take FMLA leave on several of the dates in question and dismissed his case. The district court also held that the employee could not qualify for FMLA in excess of the two days of monthly, intermittent medical leave for which he had been certified.
Appeals Court. On appeal, the Sixth Circuit began its review by noting that, “[T]o invoke the protection of the FMLA, an employee must provide notice and a qualifying reason for requesting the leave…. Per regulation, there are also different notice requirements for ‘foreseeable’ leave and ‘unforeseeable’ leave.” If the leave is foreseeable, the employee must provide the employer at least 30 days advance notice before taking leave. If the leave is unforeseeable, then the employee must provide notice of the FMLA leave as soon as practicable under the facts and circumstances of the particular case. When it comes to unforeseeable leave, an employee “must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.”
Several of the employee’s absences were due to doctor appointments. Here, the Sixth Circuit ruled that, because the doctor appointments were pre-scheduled, “it cannot be genuinely disputed that the employee failed to give appropriate notice 30 days prior to or as soon as practicable for these absences.” This was in contrast to days when the employee was unexpectedly hospitalized, in which case “a jury could find that [the employee] having unforeseeably gone to the hospital, gave his notice as soon as practicable.”
The Sixth Circuit then ruled that while the medical certification did not limit the employee’s leave to precisely two days per month, this does not mean that the employee can “take leave in whatever increment he or she chooses”, because that would not, pursuant to the FMLA, “properly balance the employee’s interests with those of the employer.” Rather, the employer should have examined whether the employee, in fact, had medical issues associated with his illness on the days he was absent.
The Sixth Circuit remanded the case to the lower court to determine whether the employee’s conduct was sufficient to warrant termination of employment despite his FMLA protections.