Q&A: Consider history before denying leave due to improper request

Question: This morning an employee contacted his supervisor through Facebook to report that he can’t come to work for at least a week because he needs surgery. Our Family and Medical Leave Act (FMLA) policy clearly states that employees must follow the call-in policy and complete a leave request form. Can we deny leave because he failed to comply with our notification requirements?

Answer: The answer depends on how your employees normally report an absence that may qualify for FMLA leave. The FMLA regulations provide that workers must “comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances” such as a medical emergency. (See the FMLA regulations at 29 CFR 825.302(d) and 825.303(c).) Here, you must determine whether the employee’s supervisor has previously allowed employees to report absences in this manner. If a regular pattern or practice exists, the employee has complied with FMLA notification requirements despite what your written policy says.

In a similar case, an employee filed a lawsuit alleging that his former employer interfered with his FMLA rights by failing to grant leave after he gave notice to his supervisor via Facebook Messenger. The company’s written policy required employees to report absences by using a call-in line. The employee argued that the company’s usual and customary notice procedures expanded beyond its written policy and included notice via Facebook Messenger because his manager had previously sent and accepted Facebook messages related to medical leave. A federal court of appeals ruled that a jury should decide whether the employee failed to comply with FMLA notice requirements. The court noted that the FMLA notification requirements are flexible and “usual and customary” procedures include any informal methods that the employer has regularly accepted, in addition to notification procedures in written policies (Roberts v. Gestamp West Virginia, LLC, 4^th Cir, Aug. 2022).

You should consistently enforce your call-in policy and FMLA notification requirements to ensure that you’re not inadvertently modifying those policies to allow alternate forms of notice. Likewise, you should train supervisors and managers to strictly follow written policies and engage HR if they want to make an exception (such as in an emergency situation).

However, this doesn’t mean they should ignore an improperly submitted request—ideally, they should let the employee know that in order for the request to be considered, they’ll need to follow the company’s standard leave request process (subject to limited exceptions in an emergency). If you’re having trouble getting employees to comply, it may be time to take a fresh look at your procedures and consider making changes that meet your needs while also making it easier for employees to give you the necessary information to administer their time off. Call your Vigilant Law Group employment attorney if you have any questions about the procedures and requirements related to employee leaves of absence. Also, see our Legal Guide, FMLA: Qualifying Events and Notice Requirements.