A Text Message To Your Superviser May Be Sufficient Notice Of An FMLA Absence

By harley erbe

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As we discuss on our Family and Medical Leave Act webpage and blog entries, employees need to give their employers reasonable notice of an absence that they believe might be covered by the FMLA. Employees normally can't just fail to show for work and then later claim that they were ill and had an FMLA-protected absence. But how formal does that notice have to be? The answer to that question largely depends on the individual circumstances of each case.

The United States Court of Appeals for the Eighth Circuit, which includes Iowa's federal courts, recently considered this issue in Delbert Hudson v. Tyson Fresh Meats, Inc. Hudson was fired after he missed several days of work for medical reasons. Before Hudson's first absence he texted his supervisor and told him that he'd be out for a few days because of medical issues. That was the only notice Hudson gave Tyson; he didn't give any notices for the following days he missed. 

When Hudson returned to work, he went to Tyson’s health services with a doctor’s note excusing him from the past week of work, as well as the coming week. Based on the note, Hudson requested leave for the days that he had missed and for several upcoming days. He intended to apply for FMLA leave. He signed a “Leave of Absence Application,” which has boxes for requesting “FMLA” or “Medical (Non FMLA)” leave. The non-FMLA box is checked on Hudson’s application. Hudson denied checking that box and claimed that someone else checked it after he signed the application. Tyson granted Hudson non-FMLA leave.

Tyson immediately fired Hudson when he returned to work. Tyson maintained that Hudson failed to provide proper notification of his medical absences. Hudson sued, claiming Tyson interfered with his FMLA rights and discriminated against him for taking FMLA leave. Hudson claimed that Tyson discriminated against him by firing him for taking FMLA leave.

Tyson countered that it fired Hudson for a legitimate, nondiscriminatory reason: He was a “no call/no show” for multiple days. Tyson clarified that it did not fire Hudson for failing to show up to work, since it granted leave retroactively. Rather, it fired Hudson for failing to follow its medical absence notice procedures, which required a phone call. Violating Tyson’s call-in policy would be a legitimate grounds for firing Hudson under governing law. But there was a dispute on this point because Hudson contended that he gave timely and adequate notice.

The court noted a few points in determining that there was an issue for trial over whether Hudson properly notified Tyson of his medical absences. First, he wasn't scheduled to work on one of the days that he was alleged to be a no call/no show. Second, Tyson's internal records stated that Hudson did provide notice on December 28. Third, there was a question whether Tyson enforced its call-in policy or whether Hudson's text message was sufficient. 

You can see how this decision turned on the case's specific facts. The employee might have lost under different circumstances. The U.S. Department of Labor's FMLA regulations normally require employees to follow the employer’s usual and customary call-in policies. And other courts have determined that failure to adhere to specific call-in policies is fatal to an FMLA claim, including cases in which the employee reported the medical absence by text. In Hudson's case, the court was likely swayed by the disputed evidence that text messaging had previously been acceptable to Tyson.

Please feel free to contact us if you need the assistance of a Des Moines employment lawyer or Des Moines Family and Medical Leave Act lawyer.

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