Shauna Saenz was approved for intermittent leave for partial complex epileptic seizures. The letter approving the leave indicated that Saenz needed to request FMLA leave by contacting a third party provider (Hartford) no later than 2 days after each time she took intermittent leave. The letter warned that failure to provide the necessary notice could result in the loss of FMLA protection. Without incident, Saenz exercised her right to intermittent leave 9 times in the ensuring five months. Each time, the letter approving the leave referenced the 2-day n notice requirement. Saenz missed work on December 29-31 and January 3-4.
On December 28, Rhonda Galloway, Saenz's mother, discovered Saenz hallucinating and disoriented. Galloway determined that Saenz could not work that day, and informed Saenz's immediate supervisor. Galloway also informed a higher level supervisor of the need for leave. Galloway took Saenz to the emergency room of the hospital where she worked for treatment. The higher level supervisor personally came and visited Saenz while she was in the emergency room. Gallow secured a court order appointing her to be a guardian of her daughter for purposes of making medical decision. Saenz was subsequently transferred to another health care facility for treatment. She was released three days later. On her release, she stayed with her mother. Galloway called Saenz's immediate supervisor, explained what had happened in the interim, and requested an indeterminate amount of leave. The supervisor reminded Galloway that Saenz was required to request leave through Hartford. Galloway apparently did not call The Hartford. Saenz was subsequently diagnosed with bipolar disorder. Saenz called The Hartford on January 9 regarding her absences of December 29, 30, 31, and January 3 and 4, 2007. The Hospital subsequently terminated her employment due to her non-FMLA approved absences. The letter explained that her absences were not FMLA-approved because she failed to request leave within two days of her hospital discharge as required by the employer's policy.
Saenz sued the hospital alleging violation of the FMLA. The district court awarded summary judgment to the hospital. Saenz appealed to the Fifth Circuit. The Fifth Circuit reversed the decision of the district court. Specifically, the court found that, pursuant to 29 CFR 825.303, Saenz contacted the hospital "as soon as practicable" and provided enough information to hospital staff to alert her employer that she was requesting FMLA leave. The fact that she did not timely contact the third party provider within two days as required by the hospitals' more restrictive policy was not, the court concluded, controlling. In that regard, the FMLA establishes a more relaxed notice requirements, which is all the employee was required to satisfy.
Shauna Saenz v. Harlingen Medical Center, L.P., No. 09-40887 (5th Cir. Aug. 2, 2010). http://www.ca5.uscourts.gov/opinions/pub/09/09-40887-CV0.wpd.pdf
Comment: The decision, in my opinion, correctly determined that, under the circumstances, the employee timely provided adequate notice of the need for FMLA leave "as soon as practicable." The court also correctly determined that, to perfect her request for FMLA leave, the employee need only satisfy the minimum requirements of the FMLA leave, and not the more stringent procedural requirements imposed by the employer's policy.
The decision is based on the pre-2009 revisions to the DOL regulations. The court correctly declined to aply the post-2009 DOL notice regulations retroactively. As revised, the "new" DOL notice regulations provide that, absent unusual circumstance, an employee must abide by an employer's "usual and customary" notice and procedural requirements for requesting unforeseen leave. See 29 CFR 825.303(c). In dicta, the Fifth Circuit observed that, if the new standard applied, the employer "might very well be entitled to summary judgment." Opinion at n. 9. My opinion: If the circumstances of this case are not "unusual," the term has no meaning. On these facts I don't' believe the result would, or should, change.
The lesson: an employee who is incapable of complying with an employer's more stringent "usual and customary"notice procedures may still be entitled to FMLA leave if they satisfy the minimum notice requirements of the FMLA. An employee who fails to adhere to the employer's leave requesting procedures may, however, be subject to discipline for such failure even though FMLA leave was granted.