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Employers who discipline employees for violating attendance policies or who condition employee benefits on perfect attendance often are faced with claims that such actions violate the Family and Medical Leave Act.1 In many instances, the employee will argue that because the absence qualified for protection under the act, the employer is prohibited from taking adverse actions in retaliation for the exercise of those rights. Human resources managers are sometimes surprised by such claims, particularly where the employee failed to make an advance request for foreseeable Family and Medical Leave Act leave or properly notify the employer that unforeseeable circumstances necessitated a leave. Cases addressing such fact patterns reflect the difficulty courts have had in assessing the quantum of information that employees are required to communicate to put their employers on notice of an Family and Medical Leave Act-protected leave request.2 In this column, we analyze several cases which consider Family and Medical Leave Act claims in the context of an employer’s efforts to administer attendance policies. BACKGROUND Enacted on Feb. 5, 1993, the Family and Medical Leave Act requires employers with 50 or more employees within a 75-mile radius to provide eligible employees3 with up to 12 weeks of unpaid leave for the birth or adoption of a child or the placement of a child for foster care, or because the employee, or the employee’s spouse, child or parent has a “serious health condition.” 29 C.F.R. � 825.112. During Family and Medical Leave Act leave, employers must continue the employee’s health coverage under the employer’s group health plan, 29 C.F.R. � 825.209(a), and, upon completion of leave, the employer must restore the employee to the same position or an “equivalent” position. 29 C.F.R. � 825.100(c). In addition, Congress authorized the Labor Department to “prescribe such regulations as are necessary to carry out” the requirements of the act. 29 U.S.C. � 2654. The Labor Department has taken a very expansive view of this rule-making authority in attempting to apply the act to myriad circumstances not specifically addressed by Congress in the statute. These regulations include requirements that employers provide various types of notice to employees of their rights and responsibilities under the act. For example, when an employee takes Family and Medical Leave Act leave, the employer is required to provide written notice to the employee containing, at a minimum, the following information: (i) that leave will be counted against the employee’s 12-week entitlement; (ii) whether the employee will be required to provide medical certification and the consequences of the failure to do so; (iii) the right of the employee or employer to substitute paid leave and any conditions accompanying such substitution; (iv) arrangements for payment of health insurance premiums; (v) whether a fitness for duty certificate will be required; (vi) whether the employee is a “key employee”4 and, if so, the possibility that leave may be denied; (vii) the employee’s entitlement to be restored to the same or equivalent position at the end of the Family and Medical Leave Act leave; and (viii) that the employee may be responsible for reimbursing the employer’s portion of health premiums paid on the employee’s behalf if the employee fails to return to work. 29 C.F.R. � 825.301(b)(1). In addition, under these regulations, an employer “cannot use the taking of Family and Medical Leave Act leave as a negative factor in … hiring, promotions or disciplinary actions; nor can Family and Medical Leave Act leave be counted under ‘no fault’ attendance policies.” 29 C.F.R. � 825.220(c). Under the act, employees are required to provide notice, when possible, at least 30 days in advance for planned medical leave, or for leave that is foreseeable. 29 U.S.C. � 2612(e)(1). See also 29 C.F.R. � 825.302(a). However, in cases where the treatment or reason for qualified Family and Medical Leave Act leave is unforeseeable, the regulations indicate only that an employee must notify his employer “as soon as practicable.” 29 C.F.R. 825.303(a). The regulations have interpreted “as soon as practicable” as depending on the facts and circumstances of the particular case, but within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances. 29 C.F.R. � 825.303(a). Ultimately, according to the Labor Department, it is not necessary that an employee mention the statute expressly when communicating their need for leave. 29 C.F.R. � 825.302(c). Instead, Labor’s position is that employees need only give notice that they have a qualifying reason for requesting leave. The regulations provide that “[t]he employer should inquire further of the employee if it is necessary to have more information about whether Family and Medical Leave Act leave is being sought by the employee, and obtain the necessary details of the leave to be taken.” INSUFFICIENT NOTICE Courts have rejected retaliation claims under the Family and Medical Leave Act where the employer had no knowledge at the time of the dismissal that the reason for leave was allegedly covered by the Family and Medical Leave Act. For example, in Johnson v. Primerica, No. 94 Civ. 4869, 1996 U.S. Dist. LEXIS 869, at *1 (SDNY Jan. 30, 1996) Wayne Johnson worked as a computer programmer at Smith Barney (Primerica) from Sept. 17, 1988, to Nov. 15, 1993. On three consecutive business days starting Oct. 28, 1993, Johnson failed to report to work and provided no explanation for his absence. Upon his return, Johnson verbally indicated to his supervisor that he needed a leave of absence “to help his family start up a family business” and submitted a written memorandum requesting a month off to attend to a matter of “significant financial importance to [his] immediate and extended family.” Johnson subsequently failed to report to work on Nov. 4, 1993, and on Nov. 5, 1993, was informed that his request for leave was denied. Johnson did not return to work after Nov. 5, 1993, although he did call his secretary on four consecutive business days starting Nov. 8, 1993, to inform her that he would not be reporting to work due to a back problem. After not calling in on Nov. 12, 1993, or Nov. 15, 1993, Primerica terminated Johnson’s employment. Johnson filed suit alleging that his absences qualified for Family and Medical Leave Act protection because he was caring for his ill 3-year-old son, and that his supervisors were aware of his son’s illness. Primerica alleged that Johnson failed to mention any family or medical reasons for his absences and that he was terminated for exceeding his allotment of vacation, personal and sick leave, and for failing to notify his supervisors when absent. The court first addressed the threshold question of whether Johnson’s leave request qualified for Family and Medical Leave Act protection. After finding evidence lacking on this point, the court then discussed whether Johnson provided sufficient notice to shift the burden to Primerica to inquire further. Using oft-cited language, the court stated that “[w]hile an employer’s duty to inquire may be predicated on statements made by the employee, the employer is not required to be clairvoyant. Johnson simply has not carried his burden of showing that the employer was put on notice of a possible Family and Medical Leave Act leave situation.” The court went on to note that mere employer knowledge of prior medical events is insufficient to impose on the employer a duty to inquire. Ultimately, the court held that Johnson was ineligible for leave under the Family and Medical Leave Act. By contrast to the facts presented in Johnson, even when the employee fails to put the employer on notice of the Family and Medical Leave Act-covered reason for leave, the employee nevertheless may seek to establish notice based on other evidence of the employer’s knowledge of the employee’s medical condition. Based on such facts, courts have denied employers’ motions for summary judgment with respect to the employee’s retaliation claims under the act, and have held that the employer had a duty to inquire further before enforcing the absenteeism policy. INFORMAL KNOWLEDGE For example, in Barnett v. Revere Smelting & Refining Corp., 67 F Supp 2d 378 (SDNY 1999) (McMahon, J.), Vincent Barnett was employed by Revere Smelting & Refining Corp. from April 1989 to November 1996. In early 1996, Barnett began to experience a range of symptoms including chest pains, shortness of breath and fatigue. After being referred to a cardiac specialist by Revere’s staff physician, Barnett was diagnosed with aortic regurgitation and mitral valve prolapse on Oct. 9, 1996. Barnett was placed on medication but was told he could return to work the next day. Barnett told his supervisor about his condition, and allegedly explained that he periodically might be unable to work as a consequence. On the mornings of Nov. 9-10, 1996, allegedly as per company practice, Barnett called Revere’s security guard to explain that he would be unable to work those days due to chest pains and difficulty breathing. Upon his return on Nov. 11, 1996, Revere terminated Barnett’s employment for excessive absenteeism. Barnett brought an action against Revere alleging violation of the Family and Medical Leave Act. In cross-motions for summary judgment, Revere alleged that Barnett failed to provide any documentation concerning his medical condition upon his return to work, while Barnett alleged that such documentation had been submitted. In deciding whether adequate notice was provided, the court stated that “the critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.” The court found that because Barnett did not specifically reference his medical diagnosis when calling in sick, “the key question in this case is the extent to which Revere’s awareness of Barnett’s condition before November 11 should have put it on notice that Barnett’s November 9 and 10 absences were related to his heart condition.” The court determined that a question of fact remained as to whether or not Barnett’s prior conversations with his supervisor and the on-site medical staff, in combination with his phone calls to the security guard on the mornings of his absences, were sufficient to shift the burden to Revere to inquire further. Summary judgment was therefore inappropriate on the issue of notice. WELL-ARMED EMPLOYER While Johnson holds that “oblique references” to a family member’s illness are insufficient to establish notice of Family and Medical Leave Act rights, Barnett suggests that at least one current judge in the Southern District of New York believes that informal knowledge of an employee’s medical condition may be enough for a court to find genuine issues of material fact warranting trial. In Jennings v. Parade Publications, No. 01 Civ. 8590, 2003 U.S. Dist. LEXIS 17088, at *8 (SDNY Sept. 30, 2003), the court stated that “the precise contours of what constitutes sufficient notice to shift the burden of inquiry have not been clearly defined by the courts.” While the courts continue to sort out the notice that employees must give to gain the protections of the Family and Medical Leave Act, employers should consider prophylactic compliance with the stringent standards imposed by cases such as Barnett. Employers have at least three options with respect to employee disclosure when crafting policies concerning employee absenteeism: (1) Require employee disclosure in the form of documentation from a medical professional for all health-related absences; (2) Request a general explanation for all employee absences; or (3) Employ a no-fault scheme in which absences are tallied but explanations are neither requested nor recorded. Each of these options brings with it a different level of administrative cost and burden to the employer. The first two options require that the employer not only count absences, but also assign staff to receive and/or file documentation regarding the reasons for employees’ absences. By contrast, companies who choose the third option will incur none of these additional administrative expenses. However, while the first two options ensure notice to the employer of Family and Medical Leave Act-covered conditions, the third option leaves it to the employee to trigger the protections of the Family and Medical Leave Act. While the third option is the easiest to administer, it also brings with it the most risk that a disciplinary action may be taken where the employer has no actual notice that the leave is for Family and Medical Leave Act-covered reasons. If the rule in Johnson prevails, an employee who has not put the employer on notice that a leave is covered by the act should not be permitted to sustain a retaliation claim. However, to avoid a situation such as the one faced by the employer in Barnett, the employer may wish to interview the employee’s supervisor to ensure that the employer has not been put on notice that the absences were for Family and Medical Leave Act-covered reasons. Whichever type of absenteeism policy an employer chooses, if the employer learns of facts that indicate that the leave may have been for Family and Medical Leave Act-covered reasons, the employer should make inquiries concerning the reasons for the leave. Jeffrey S. Klein and Nicholas J. Pappas are partners in the Workplace Practices Group of Weil, Gotshal & Manges where they practice labor and employment law. Jason Lichter, an associate at the firm, and Mariel Martinez, a summer associate at the firm, assisted in the preparation of this article. Endnotes: 1. For a summary of the Family Medical Leave Act and analysis of the final regulations promulgated thereunder, see Jeffrey S. Klein and Nicholas J. Pappas, Analysis of New Family Leave Regulations, New York Law Journal, April 3, 1995, p. 3. 2. Kristine C. Karnezis, Adequacy of Notice to Employer of Need for Leave Under Federal Family and Medical Leave Act of 1993, 184 A.L.R. Fed. 171 (2003). 3. An “eligible employee” means an employee who has been employed for at least 12 months by the employer and who has worked at least 1,250 hours with such employer during the 12-month period immediately preceding the request for leave. 29 USC � 2611(2)(A). 4. A “key employee” is one who is among the highest paid 10 percent of the employer’s salaried employees within 75 miles of the work site. 29 C.F.R. � 825.217.

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