- Walmart employee may pursue her request for interference under the Family and Medical Leave Act (FMLA) because, among other things, she was confused about the employer’s appeal process, the 9th Court of US appeal held on October 6 (Hazelett v Wal-Mart Stores, Inc., n ° 19-16628 (9th Cir., Oct 6, 2020)).
- The plaintiff was injured on the job and applied for workers’ compensation and time off. She called every day and was in touch with the outside administrator who handled Walmart’s workers’ compensation claims and time off claims. She was eventually fired for her absences, not realizing that she had to communicate with two separate departments at the outside administrator, according to court documents.
- The employee sued, alleging interference from FMLA. A federal district court issued summary judgment for Walmart, ruling that the employee had not made an interference claim because she had not complied with the employer’s policies and procedures. On appeal, the 9th Circuit backtracked, citing evidence that it called daily, provided a doctor’s note justifying its need for time off and that “confusion existed about having to inform a company of its request for leave. workers’ compensation and their request for leave by having to contact two different services within the same company. The question remains, the court said, “whether [she] did not follow the leave request policy and procedures, and whether those policies were ambiguous. Attempts to comply created material factual issues to be decided at trial. “
Employers are generally free to require employees to follow certain appeal procedures. “One of the most employer-friendly changes to FMLA regulations over the years is the requirement that an employee be required to follow the employer’s usual and customary appeal procedures to report an FMLA absence.” , Jeff Nowak, now a shareholder of Litter, already told HR Dive.
Notably, however, at least a court ruled this an employer cannot deny FMLA leave based on specific FMLA notice requirements that exceed what the employer requires for other types of leave. A federal district court reached this conclusion last year, approving a lawsuit against a Burger King operator on trial (Moore v GPS Hospitality Partners IV, LLC, n ° 17-0500 (SD Ala. 3 June 2019)). In the end, the parties settled and Nowak, on his blog FMLA Insights, warned employers against placing too much emphasis on Moore court decision.
However, HR may need to carefully design and communicate appeal policies because recent research has revealed that employers are increasingly outsourcing leave administration. It is imperative to remember that outsourcing does not exonerate employers from liability in the event of a breach: in 2018, a federal district court has determined that an employer infringed an employee’s FMLA rights when their third-party administrator delayed their return to work by one month (Eagle vs. SMG Salt Palace, n ° 2: 17-cv-1132 (D. Utah, November 30, 2018)).
HR can also train managers to apply appeal policies consistently. If an employee who is fired for excessive absences tells you that they have texted their supervisor about FMLA absences, you could have a problem on your hands, Matt Morris, vice president of FMLASource, ComPsych Corporation, said told attendees at a conference in 2018. Managers shouldn’t undermine policies, he said.