Notice "As Soon As Practicable" Triggered Based on Possibilty of the Need for FMLA Leave

David Valdivia, an inbound electrician for BNSF, suffered from migraine headaches for which he had been granted intermittent FMLA leave in the past.  Valdivia was prescribed Maxalt to treat his migraines.  One of the side-effects of Maxalt caused Valdivia to occasionally fall into a deep sleep for up to 27 hours.  When he takes Maxalt on a day he is scheduled to work Valdivia would set his alarm clock to wake him, which did not always work.  If family members were home, they would also wake him up in time to make his shift.  To avoid AWOL, BNSF policy required Valdivia to either report to duty on time or call-in and request FMLA before the start of his shift.

After working the midnight shift on August 19, Valdivia felt the onset of a migraine on his way home from work.  He took Maxalt at 9 am, and set his alarm for 11 pm in order to make the midnight shift.  He took Maxalt again at 2:00 pm.  Valdivia not only slept through his alarm, but through his entire shift (18 hours).  When he awoke he called BNSF, explained what happened, and requested FMLA leave.  Long story short, BNSF denied the request, charged Valdivia with AWOL, and issued him a 20-day suspension.  Valdivia sued alleging that BNSF interfered with his FMLA rights. 

There was no question that Valdivia suffered from an FMLA-covered serious health condition (migraines) generally, and on the day in question.  Nor was there any question that the onset of the migraine was not foreseeable.  The case turned on whether Valdivia gave BNSF notice of his unforeseeable need for FMLA leave "as soon as practicable under the facts and circumstances of the case," as required by 29 CFR 825.303(a) of the DOL FMLA regulations.  The court found that Valdivia did not notify BNSF as soon as practicable of his need for FMLA leave.

Based on circumstantial evidence, the Court found that Valdivia knew he would need FMLA leave as of 2 pm, when he took his second dose of Maxalt.  The Court also found that it was possible and practicable for him to notify BNSF of his need for leave at that time.  The Court noted that  Valdivia knew at that time he took his second dose that just one dose of Maxalt could cause him to sleep through his alarm.  Notwithstanding that knowledge, he made no arrangement for family members to awaken him after he took his second dose.  The court observed:

At trial, plaintiff admitted that if he had called in to request leave, then recovered in time to work, he could have reported to work as usual with no adverse consequences.  Plaintiff's decision to play the odds and wait until the last minute to re-assess his situation did not postpone his obligation to give notice as soon as practicable and possible under the FMLA.

Valdivia admitted that it was not impossible or impracticable for him to give notice at 2 pm.  He argued that BNSF policy only required him to call before the beginning of the shift.  The Court dismissed various hypothetical scenarios offed by Valdivia demonstrating that he could have called in after 2 pm but before his shift.  In so doing, the court rejected the argument that BNSF's more generous-call-in policy exonerated Valdivia's duty under the FMLA to give notice as soon as practicable.  The court concluded:

If the Court were to allow plaintiff to use BNSF policy as a sword in FMLA interference litigation, it could unintentionally discourage the very kind of dialog and communication which the FMLA is intended to promote.

Comment:  The decision illustrates two points.  The first is how the court interpreted "as soon as practicable under the facts and circumstances of the case."  The Court focused on when, in its estimation, Valdivia should have known that he would need FMLA leave.  In so doing, the Court fixed that awareness based on the possibility that he might need FMLA leave because, in the past, he occasionally slept through his alarm when taking just one dose of Maxalt.  Setting the point in time when an employee should realize they may need leave based on the mere possibility of that need is a fairly low standard.  

Second, the court's dictum that BNSF's more generous call-in policy does not supersede the FMLA's "as-soon as practicable" notice requirement is at odds with the FMLA.  The observation is dictum because Valdivia, in fact, did not notify BNSF prior to the start of his shift that he may need FMLA leave.  The court did not need to address what might have happened had Valdivia not slept through his entire shift. 

Moreover, court's dictum is clearly wrong.  The FMLA allows an employer to provide greater leave benefits than the minimum required by the FMLA.  29 CFR 825.700.  Allowing an employee a greater amount of time to request leave than the minimum required by the FMLA is a form of greater leave benefit.  The court's observation runs contrary to the plain language of the DOL regulations.      

Valdivida v. BNSF Railway Co., No. 07-2467-KHV, 2008 U.S. Dist. LEXIS 10828 (D. Kan. Sept. 30, 2008)