Employer’s Policies May Have Violated FMLA

February 14, 2006

I. One Hour Advance Notice Policy.
Many employers have adopted policies stating employees must provide a certain amount of advance notice if they will not be reporting for work. For example, an employer may require an employee to call-in and provide the employer with at least one hour of notice that the employee will not be reporting to work. As shown by the case below, such a policy can violate the federal Family and Medical Leave Act (FMLA). The federal FMLA regulations address an employee’s need for foreseeable leave and unforeseeable leave. Each of these provisions state that employees are to notify employers of their need for leave “as soon as practicable.”
In Spraggins v. Knauf Fiber Glass GmbH, C.V. No. 3:04-CV-1071-T (Wo. 11/21/05), the employer had established a policy requiring employees to provide notice at least one hour or more before the start of their work shift if they would not be reporting for work. A wife of an employee, Spraggins, was pregnant and was having pregnancy complications. On one occasion, the employee called in 54 minutes prior to the start of his shift to advise the employer that he had to stay home that day to care for his wife. The employee was terminated because he did not comply with the one hour rule. The employee then filed a lawsuit in federal court alleging that his termination violated the federal FMLA.
In the federal court action, the employer filed a motion seeking dismissal of the lawsuit on the basis that the employee was not entitled to leave because he had not complied with the “as soon as practicable” rule in the FMLA. The Court refused, however, to dismiss the case. The Court ruled that without knowing when the employee decided he needed to stay home to care for his wife, the Court could not dismiss the lawsuit. From the Court’s indication in the case, the Court would find the one hour notice rule as violating the FMLA if the employee only knew shortly before calling his employer that he had to remain home with her.
II. Vacation Policy.
Many employers have adopted a policy requiring employees to provide advance notice if they wish to use vacation. Under these policies, if the advance notice is not provided, usage is denied.
The federal FMLA regulations state, however, that no limitations may be placed by an employer on an employee s use of vacation time while using FMLA leave for any of the three purposes. Another federal provision states that provisions in a collective bargaining agreement can grant more rights than the federal FMLA provides, but they cannot diminish FMLA rights.
In Solovey v. Wyoming Valley Health Care System-Hospital, No. CIV.A. 3:04-CV-2683 (M.D. Pa. 10/3/05), a provision in a collective bargaining agreement stated that employees had to provide two weeks advance notice before using a vacation day. An employee, Solovey, was required to be absent from work on short notice to care for her ill father. Solovey wished to use vacation time for the days she was absent from work on FMLA leave. The employer denied Solovey the right to use vacation while she was on FMLA leave. The employer’s basis for doing so was that Solovey did not provide the required two weeks notice.
Solovey initially filed a grievance challenging the denial of her vacation. An arbitrator upheld the employer s decision. Solovey then filed an action in Federal District Court.
In federal court, the employer argued that providing two weeks notice of the desire to use vacation was a requirement of the vacation provision in the collective bargaining agreement that had to be met even if an employee was using FMLA leave. The Court found this argument to be without merit. The Court found Solovey’s use of FMLA leave was unforeseeable and that applying the collective bargaining agreement’s two weeks notification requirement would limit an employee’s right to use vacation under the FMLA when an unforeseen situation arose that entitled the employee to FMLA leave. The Court further noted that the FMLA specifically states that although collective bargaining agreements can provide broader leave rights than the FMLA, they cannot diminish those rights. The Court found that acceptance of the employer’s argument would diminish an employee’s rights under the FMLA law.
The above cases highlight the fact that the federal courts will interpret the federal FMLA with flexibility depending upon the circumstances of a particular situation. Employers who adopt rigid rules in regard to notice requirements or not returning FMLA paperwork by a specific date, run the risk that such policies may be found in violation of the FMLA depending upon the circumstances of a particular matter.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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