FMLA: Is phone text enough to provide notice of need for leave?
More employees are communicating with their managers via texts. So what are your managers supposed to do when a text contains possible medical or FMLA-related info?
That’s a tricky question, and the answer, quite frankly, depends on two things:
- What your leave policy or call-in policies say, and
- How your managers have treated employees’ texts in the past.
Courts will look to both to see what kind of precedent you’ve set.
Take a recent FMLA lawsuit against Tyson Fresh Meats as a warning on both of these fronts.
Tyson had a call-in policy that stated:
“All management Team Members are expected to personally call their direct supervisor to report an unplanned absence or to report that they will be late.”
This is not unlike a lot of call-in policies employers are allowed to (and do) tie to their FMLA policies that require employees to call in prior to an absence — even an FMLA-related one. Courts have upheld terminations in which an employee out on FMLA leave was fired for failing to abide by such a policy.
Sued for FMLA interference
There’s no ambiguity in Tyson’s policy — fail to call in when you’re going to be late or absent, and you’re in violation.
So why then is a court allowing a Tyson employee to sue for FMLA interference when it’s clear that he:
- knew about the policy, and
- failed to call his supervisor prior to taking an FMLA-related absence?
The answer: There was evidence that the employee, a Tyson supervisor named Delbert Hudson, had communicated with his supervisor Hamdija Beganovic via text message on previous occasions when Hudson would be late or absent.
So when Hudson was terminated — for which he later sued — after taking FMLA leave for only texting — and not calling — to say that he would miss work, the court viewed the previous texts as potentially pivotal.
Tyson argued Hudson’s FMLA interference lawsuit had no merit, because he violated the company’s call-in policy by not having an actual phone conversation with his supervisor. Ordinarily, that would’ve been a sound argument.
But the previous texting between Hudson and Beganovic, in the court’s mind, may have set a precedent that would nullify Tyson’s ability to lean on its call-in policy in this case. The court is now going to let a jury make the call — which mean’s Tyson’s in for a costly trial or settlement.
Double-whammy
The previous texts between Hudson and his supervisor could come back to haunt Tyson in another way as well.
Tyson argued that Hudson failed to give the company proper notice of his need for FMLA leave.
It turns out all Hudson said in his text to his supervisor prior to missing several days of work was:
“having health issues, would be out a few days, and needed to see a doctor.”
Then, Tyson provided Hudson with a leave of absence application, on which the company claims he checked the “non-FMLA leave” box.
Part of Tyson’s argument to get Hudson’s lawsuit tossed is that since Hudson didn’t provide info about his health issues via an actual phone call prior to taking leave — in conjunction with his “non-FMLA” designation on the form — Hudson hadn’t properly put the company on notice of his need for FMLA leave. Therefore, he wasn’t protected by the law.
To this, the court basically established two things:
- How an employee designates his or her leave carries little weight because the person may not know if his or her leave qualifies for FMLA protections, and
- To a jury, the info provided in the text may have been enough to put the company on notice that the FMLA was in play — if the jury finds that the employee wasn’t bound by the company’s policy to call in with the info.
So, in a nutshell, if it’s determined the company’s call-in policy was negated by Hudson and Beganovic’s previous text, Tyson may not have much of a leg to stand on here.
Make sure managers abide
So what can employers learn from this case? If you want an enforceable policy requiring employees to actually call-in prior to missing work, make sure your managers abide by that policy as well. That would require making sure managers — and their subordinates — know that texts are not an acceptable means of reporting absences/tardiness.
The second a court sees that texting has become an acceptable means of “calling,” it’ll take the teeth out of an official call-in policy.
