Voice Mail Not Enough for FMLA Notice

December 1, 2003 (PLANSPONSOR.com) - An employee with a demonstrated pattern of both absences and tardiness needed to do more than leave a voice mail to provide sufficient notice under the Family and Medical Leave Act (FMLA), according to a federal district court ruling.

>In Henegar v. Daimler-Chrysler Corp, a federal judge in the US District Court for the Eastern District of Michigan held that David Henegar failed to satisfy the FMLA’s requirement that an employee notify his or her employer of the need for FMLA leave – and that his termination by Daimler-Chrysler following his two-week absence did not violate the FMLA.   It was a two-week absence during which Henegar played golf in a corporate league and drove to work to pick up his paycheck, but never spoke to a supervisor or human resources about his need to take a leave of absence to recover from symptoms of irritable bowel syndrome and ulcers, according to Thomson Publishing.

Track Record

>Henegar, who had been disciplined many times for absences, tardiness and being away from his job during the seven years he worked for Chrysler, had already been terminated by the auto maker on two prior occasions, though he was subsequently reinstated.   However, following his third termination, Henegar filed suit, alleging that his employer violated the FMLA and retaliated against him.

>In that suit, Henegar claimed that on April 7, 2001, he suffered a flare-up of symptoms from irritable bowel syndrome and ulcers, a condition he had not previously discussed with his employer.   He sought treatment from Dr. Vilma Garg, who did not work on the weekends, on Monday, April 9.   On that morning, Henegar phoned his employer’s automated computer system to inform his employer that he would be absent from work – and, from a list of pre-programmed options, chose “ill” to explain why he would be absent, even though he had already exhausted his sick leave. Henegar alleged that he saw Dr. Garg later that same day, at which time she prescribed medication, told him to stay home from work, and suggested a follow-up visit a week later.

Out and About

>On April 12, Henegar drove to the employer’s facility to pick up his paycheck, though he did not speak to his supervisor or to a human resources representative about his illness, or how long he might be out of work.   On or around April 16, Henegar was told by Dr. Garg to stay away from work another week, as well as to exercise, lose weight and find a way to relieve his stress.   Once again Henegar called Chrysler’s automated system to inform the company that he would be out of work for the week, but he did not speak directly to his supervisor or to human resources.   The very next day, Henegar golfed in Chrysler’s golf league, where he was spotted by a supervisor, who informed human resources.

>Henegar checked in again on April 21 with Chrysler’s voice mail system, made another visit to Dr. Garg on April 23, and finally returned to work on April 24.   At that time the company nurse told him that he needed to speak with the company labor representative – to whom Henegar gave a handwritten excuse note.   The labor representative then told Henegar that his absence was being investigated.

>The representative then called Dr. Garg’s office, and found that Henegar had not been treated between April 4 and April 23.   On April 26 Henegar was terminated.   He received a letter from the labor representative stating that he was being terminated because he did not submit proper medical certification for his absence.   About a week later, Henegar submitted another letter from Dr. Garg explaining his illness and stating that he needed leave from April 7 to April 23. Although the letter was dated April 9, Henegar testified that he had Dr. Garg write the letter on or about April 30.

The Court’s Decision

>In its determination, the court said that employees who require foreseeable FMLA leave must give their employers 30 days notice, or as much notice as practicable.   For unforeseeable leave, employees must notify their employers of their need for a leave of absence  “within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible” (29 C.F.R. §825.303).

>The court held that, even if the leave was unforeseeable, “…plaintiff failed to give timely notice ‘as soon as practicable’ after learning that leave was needed for a serious health condition.”   The court further found that calling an automated computer system did not provide the necessary information to notify an employer of an FMLA-qualifying serious illness, and that the letter from Dr. Garg that Henegar presented upon returning to work was insufficient notification because it was untimely.   Noting that Henegar managed to both drive to work to pick up his paycheck, and to play golf while on leave, the court also found that he could have given Chrysler notice before April 24.

>In rejecting the retaliation claim, the court noted that Henegar would have to show that:

  • he engaged in a statutorily protected activity;
  • the exercise of the protected activity was known by the defendant;
  • he suffered an adverse employment decision; and
  • the decision was casually related to the protected activity

>Henegar claimed that Chrysler's decision to investigate him before he returned from his leave of absence constituted retaliation. The court, however, found that employers are entitled to investigate requests for FMLA leave - and in the particular case Henegar's coming to work to pick up his paycheck and golfing during his leave of absence, as well as his history of tardiness and absenteeism, all rendered the subsequent investigation even more reasonable.

>Additionally, the court found that since Henegar failed to adequately inform his employer that he required FMLA leave, Henegar was not engaged in a statutorily protected activity.

>The case is Henegar v. Daimler-Chrysler Corp., E.D. Mich., No. 02-73039, Aug. 19, 2003.