by Lana L. Rupprecht, Esq. - Director Product Compliance
& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,
September 21, 2022
Imagine this: Your employee Kasey misses several days of work due to a recurring infection related to an emergency appendectomy. Your policy, which is provided to all employees, requires Kasey to call in on a specific phone line at least 30 minutes before a shift if going to be tardy or absent. If an employee fails to call in and misses three consecutive shifts, you consider the employee to have abandoned his job.
Kasey fails to follow your policy and instead, corresponds with his manager via Facebook Messenger (yes, you read that correctly!) rather than using the required call-in procedure.
Initially, the manager accepts these communications when Kasey misses work due to the emergency nature of Kasey's condition that requires surgery, and even responds multiple times via Facebook Messenger. Kasey returns to work and is credited with FMLA leave. But then, Kasey goes out a few days later and continues to miss work due to complications, and he is readmitted to the hospital. Kasey never calls in on the required phone line but continues to correspond back and forth with his manager via Facebook Messenger. Kasey is terminated for job abandonment.
Does Kasey have "a case"?
This scenario is based on an actual case, Roberts v. Gestamp West Virginia, LLC (4th Cir. August 15, 2022). Kasey's claim turned on whether he provided his employer with adequate notice of his need for leave under the Family and Medical Leave Act (FMLA) via Facebook Messaging.
Any guesses how this turned out? The lower court agreed with the employer. It referred to the FMLA regulations stating that Kasey did not use the "usual and customary" notice and procedural requirements for requesting leave under 29 CFR §825.303(c).
But, the appellate court disagreed. According to the appellate court, "usual and customary" are not limited to an employer's attendance policy. It could include "any method that an employer has by informal practice or course of dealing with the employee, regularly accepted, along with those in the employer's written attendance policy."
According to the appellate court, under these facts, a reasonable jury could conclude that the use of Facebook Messenger by Kasey and his manager established an additional "usual and customary" notice procedure under the FMLA because:
- Kasey and his manager had a history and pattern of discussing Kasey's medical condition via Facebook Messenger including his hospital stays, his surgery and infection. Kasey's manager responded to Kasey's messages with follow up questions and asked for Kasey's expected return dates.
- Kasey needed FMLA for two surgeries. For the first surgery, his manager accepted Kasey's communications via Facebook messenger, credited him with FMLA leave and did not discipline him for failing to use the call-in line.
Although the employer stated it accepted Kasey's initial Facebook Messenger communications initially because of the emergency nature of the Kasey's first surgery, the appellate court noted that Kasey's subsequent absences involved similar circumstances.
- Although Kasey had been disciplined a few months earlier for failing to use the call-in line for an unrelated absence, the court found that during the period related to his appendectomy, Kasey was not disciplined or asked to instead use the regular call-in line.
- Bonus pointer! In this case, the employer's policy required the employee to call in at least 30 minutes before an absence. Under the FMLA (and many state leave laws) the employee must only call in "as soon as practicable" in the case of unforeseen absences. So be prepared to be flexible on the timing of the employee's notice of absence if there are extenuating circumstances. But even then, you can require the employee to use your company's "usual and customary" notice procedure unless extenuating circumstances (yes, again) prevents them from doing so.
Pings for employers
This case has lessons for employers far beyond just an employee's use of Facebook Messenger.
- Do not communicate with your employees via Facebook Messenger, WhatsApp, text, or similar applications unless you are ok with accepting that method as adequate FMLA notice and/or notice for other absence reasons.
- If an employee attempts to contact you to report an absence in a manner different from what is permitted under your policy, direct them to the policy and tell them they must follow the organization's call-in procedure. Train your supervisors on this point and apply the rule consistently!
- No good deed goes unpunished! Don't make exceptions to your call-in rules, even if you think it's the right thing to do in a particular situation. It may preclude you from disciplining or dismissing an employee for later failing to follow policy.
Matrix Can Help!
Matrix offers integrated FMLA/leave of absence, ADA, and disability management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at [email protected].