In Brown v. The Pension Boards, United Church of Christ, No. 04 Civ. 10062 (RWS), 2007 U.S. Dist. LEXIS 37248 (S.D.N.Y.), the Court dismissed the employee's FMLA claim after finding that the employee's request for leave failed to adequately notify the employer that the absence might be covered by the FMLA. There, Brown, feeling stressed due to the pressures of work, called off work two days in a row. Under the employer's policy, an employee who fails to report to work two days in a row is considered to have abandoned their position.
On the second day, the employer received a facsimile copy of a doctor's mote indicating that Brown was under physician's care for "an exacerbation of chronic illness" which rendered him unable to work. The note indicated that Brown would be able to return to work in a week. The note did not specify the nature of the illness.
The employer attempted, unsuccessfully, to contact Brown during his absence, leaving messages. The employer eventually got in contact with Brown's mother and sister. The mother told the employer that she had been in daily contact with her son. She eventually told the employer that Brown was in Costa Rica, he was "running from himself," and that he had "had a breakdown condition." A sister contacted by the employer indicated that Brown was "sick." The employer was not given contact information for Brown in Costa Rica.
Brown's employment was subsequently terminated. The day after the termination decision, Brown called his employer from Costa Rica. He told his employer that he had had a nervous breakdown and went to Costa Rica to get help from his family. Brown eventually suppled a doctor's note excusing him from work for his entire absence as a result of treatment for a nervous condition. The employer did not rescind Brown's termination. Brown sued alleging that his termination interfered with his FMLA rights.
In awarding summary judgment to the employer, the Court found that Brown had failed to put his employer on adequate notice that the leave might be FMLA-qualifying. In pertinent part, the Court found that a spokesperson may give notice of the need for FMLA leave on an employee's behalf "only if the employee is unable to do so personally." 29 CFR 825.303(b). Here, "despite being in daily phone contact with his mother, Brown did not contact the Board until ..." after his termination. "There is nothing in the record to suggest that Brown was unable to contact Boards himself; indeed, the record indicates that Brown was in fact able tot do so. Thus, the statements of Brown's mother and sister do not constitute adequate notice under the FMLA."
Comment: The decision highlights an often ignored provision of the FMLA regulations. While the FMLA allows a spokesperson to notify the employer that an employee needs FMLA leave, this may only happen where the employee is unable to notify the employer him or herself. If the employee is capable of notifying the employer and does not, notice by the spokesperson is not permitted and, therefore, will be inadequate no matter what the quality of the notice.
To fall within the spokesperson exception, Brown should have argued that his psychiatric condition rendered him unable to contact his employer. The fact that he could talk to his mother, an individual who was not the source of his current anxiety, is not evidence that he had the psychiatric wherewithal to contact his employer.
Second, the Court failed, in my estimation, to take into account the employer's policy of accepting notice of the need for leave from a spokesperson. Always remember, the FMLA permits an employer to have a more generous leave policy or practice than the minimum required by the FMLA. Here, the employer reached out to the mother and sister to find out the status of the absent employee. If it could be established that the employer would accept notice of an employee's absence from a spokesperson regardless of the availability of the employee, it could be argued this is a more generous policy than the FMLA, which the employer is bound to follow.
Employers should review their emergency contact information policy in light of the FMLA spokesperson exception. If an employer grants leave to an employee based on information obtained from an emergency contact, the employer arguably has lost the right to assert the FMLA spokesperson defense where, as in Brown, the employee is able to contact the employer but elects not to. For the same reason, unions and employees should look to the employers more generous policy or practice of accepting notice of the need for leave from a spouse or other spokesperson to defeat the FMLA spokesperson requirement.
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