Dive Brief:

• A Walmart employee may continue with her Family and Medical Leave Act (FMLA) interference claim because, among other things, she was confused about the employer's call-out process, the 9th U.S. Circuit Court of Appeals held Oct. 6 (Hazelett v. Wal-Mart Stores, Inc., No. 19-16628 (9th Cir., Oct. 6, 2020)).
• The plaintiff was injured on the job and requested workers' compensation and a leave of absence. She called out each day and was in communication with the outside administrator that handled Walmart's workers' compensation claims and leave requests. 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 FMLA interference. A federal district court granted summary judgment for Walmart, finding that the employee failed to establish an interference claim, as she did not comply with the employer's policies and procedures. On appeal, the 9th Circuit reversed, citing evidence that she called out every day, provided a doctor's note supporting her need for leave and that "confusion existed about having to notify one company of her workers’ compensation claim and her request for leave by having to contact two different departments within the same company." Question remain, the court said, "regarding whether [she] failed to comply with the policy and procedures for requesting leave, and whether such policies were ambiguous. The attempts she made to comply created issues of material facts to be decided at trial."

Dive Insight:

Employers are generally free to require that employees follow certain call-out procedures. "One of the most employer-friendly changes to the FMLA regulations over the years is the requirement that an employee is obligated to follow the employer’s usual and customary call-in procedures for reporting an FMLA absence," Jeff Nowak, now a shareholder at Litter, previously told HR Dive.

Notably, however, at least one court has held that an employer cannot deny FMLA leave based on FMLA-specific notice requirements that exceed what the employer requires for other types of leave. A federal district court reached that conclusion last year, approving a lawsuit against a Burger King operator for trial (Moore v. GPS Hospitality Partners IV, LLC, No. 17-0500 (S.D. Ala. Jun. 3, 2019)). Ultimately, the parties settled and Nowak, on his FMLA Insights blog, cautioned employers against putting too much weight on the Moore court's decision.

HR may need to design and communicate call-out policies carefully, however, as recent research revealed that employers are increasingly outsourcing leave administration. It's imperative to remember that outsourcing doesn't absolve employers of liability for violations: In 2018, a federal district court determined that an employer had interfered with an employee's FMLA rights when its third-party administrator delayed his return to work for a month (Eagle v. SMG Salt Palace, No. 2:17-cv-1132 (D. Utah, Nov. 30, 2018)).

HR also can train managers to enforce call-out policies consistently. If an employee who is being terminated for excessive absences tells you he has been texting his supervisor about FMLA absences, you may have a problem on your hands, Matt Morris, VP of FMLASource, ComPsych Corporation, told attendees at a 2018 conference. Managers shouldn't be undermining policies, he said.