A Fair FMLA Result

A recent Family and Medical Leave Act ("FMLA") case out of Illinois shows the importance of not rushing to a decision when the FMLA is involved, and reinforces the ability of an employer to require compliance with its attendance procedures, even where the FMLA applies.

The employee worked as a mushroom picker for company in central Illinois (insert inappropriate jokes here about being kept in the dark, etc. with regard to your current working conditions). She advised her supervisor that she needed to take leave one summer to help her sick mother in Mexico. The manager directed her to coordinate her trip with HR to ensure that the leave was properly recorded. The company's FMLA policy required employees to submit requests for foreseeable FMLA absences at least 30 days in advance, and as soon as possible for unforeseeable events. The company typically did not enforce the 30 day notice requirement, but did ask for some type of advance documentation when possible. The company provided the employee with the necessary documentation (in Spanish, even) so that she could take it to Mexico and get it completed by her mother's physician there.

The employee planned to cover the first two weeks of her absence with vacation time, and then use FMLA time for the rest. At the end of the vacation portion of her absence, she unsuccessfully tried to fax the completed FMLA paperwork to her employer. Back in the US, when the employee did not return to work the employer unsuccessfully attempted to contact the employee by phone and via mail at her house. In the meantime, the employee's brother called her in Mexico and told her that she needed to contact the employer. She ultimately talked to her supervisor who told her that the company did not have her FMLA medical certification  The employee sent another copy. This fax did not make it, either, nor did the employee call to confirm that the employer received her second fax. The employer terminated her shortly thereafter.

In finding for the employer, the court noted that the company was entitled to impose reasonable procedural requirements for requesting FMLA leave, including preliminary authorization where possible. The court determined that the company exercised reasonable discretion in the application of its procedures in this case, and that the company did not receive any FMLA certification before it terminated the employee Although there was some confusion about who said exactly what to the employee, it was clear that the company had not rushed to terminate the employee under its formal deadline, but rather extended it to try to accommodate the employee's situation. Because the employee knew that she had to get the information to the company and failed to do so, the court determined that she was out of luck with respect to her request, even though she made a good faith attempt to send the information

This case has two important messages. The first is that in an absence case, an employer should avoid making summary decisions and carefully assess its obligations before making a decision. The courts are not looking for a perfect process in these cases, but only one that provides the statutory requirements for notice and reasonable opportunity to respond. The second is that even when the employer does not follow its own attendance policies, the employer can still enforce reasonable requirements as long as those requirements are effectively communicated to the workforce.