The district court concluded Render had not made out a prima facie FMLA interference claim because he did not give his employer, FCA, adequate notice of his intent to take leave. Since Render’s notice was insufficient to satisfy the notice requirements under the FMLA, he could not show that he had engaged in protected activity and that FCA knew about that protected activity, so the trial court found he also could not establish a retaliation claim.

Issue

The primary issue in Render was two-fold, first whether plaintiff had provided sufficient notice under the FMLA, and second, whether the plaintiff had followed FCA’s leave of absence notice requirements. Central to the opinion is the court’s discussion of whether Render’s leave was foreseeable or unforeseeable under the FMLA as notice requirements under each vary.

Under 29 C.F.R. §825.301(b), an employee giving notice of the need for FMLA leave is not required to specifically mention the FMLA, “though the employee would need to state a qualifying reason for the needed leave and otherwise satisfy the notice requirements set forth in §825.302 or §825.303 depending on whether the need for leave is foreseeable or unforeseeable.” The court’s opinion thoroughly analyzes foreseeable versus unforeseeable FMLA leave as addressed in 29 C.F.R. 825.302 and 825.303 respectively.

Judge Clay concluded Render’s intermittent leave should be classified as “foreseeable,” while the majority opinion determined that the leave request was “unforeseeable.” Both opinions hold that summary judgment on Render’s interference and retaliation claims was improper and reversed the grant of same by the district court. 

Facts

Edward Render was initially terminated from FCA in 2015 for “attendance infractions.” After filing a grievance through his union representative, Render was conditionally reinstated in April of 2017 with a one-year probationary period. FCA reserved the right to terminate him if he incurred two unexcused tardies or one unexcused absence during the probationary period.

It was undisputed that in October of 2017 (during this probationary period) Render had a serious medical condition, and he applied for intermittent FMLA leave. Render provided FCA’s third party leave administrator, Sedgwick, medical certification noting that Render needed intermittent FMLA leave to manage his depression and anxiety and that he would be unable to perform his job duties during any “flare-up” of symptoms.[2] The FMLA leave was subsequently approved by FCA. Correspondence from Sedgewick gave Render conflicting information on whether to call Sedgewick or FCA to report any FMLA-related absence. This turned out to be an issue for FCA.  

Thereafter, Render had a series of absences and tardies that he called in on FCA’s attendance line. It appears that some of these calls were answered by Sedgewick and some by FCA. These calls were all within his probationary period. The transcripts of the calls noted Render mentioned “I’m having a flare-up” and “I have been sick the last few days.” However, in none of the calls did Render specifically mention FMLA or the depression / anxiety disorder. Crucially, none of the individuals who answered the calls asked Render whether his absence was related to his approved FMLA intermittent leave nor did any of FCA’s human resources staff follow up to determine if his absences were related to his approved FMLA intermittent leave.

These absences and tardies were coded as unexcused rather than FMLA and subjected Render to termination under the reinstatement agreement.[3] Render’s manager exchanged a series of e-mails with Sedgewick to determine whether Sedgewick had approved any of Render’s absences as FMLA, Sedgewick responded that the absences were not coded as FMLA in their system. Because its records indicated that Render failed to provide notice of the need to be out of work due to the previously approved FMLA condition, FCA subsequently terminated Render on the basis that he violated the terms of his probation.[4]

Legal Analysis

The Sixth Circuit first addressed whether Render provided the required statutory notice under the FMLA. The three-member panel found that he had met the notice requirements under the FMLA, but for different reasons. The opinion by Judge Clay determined that Render’s approved FMLA intermittent leave due to his depression / anxiety disorder was foreseeable while the majority opinion of Judge Moore and Judge Suhrheinrich determined it was unforeseeable. Each opinion provided a detailed explanation as to the difference in notice required under 29 C.F.R. §825.302, foreseeable leave, and 29 C.F.R. §825.303 unforeseeable leave.

According to Judge Clay, intermittent leave is treated as a type of foreseeable leave because it is taken in separate blocks of time for a single qualifying reason.[5] “Foreseeability thus turns on whether the qualifying reason, i.e., the illness or medical condition, was foreseeable. In intermittent leave cases, the qualifying reason is known in advance, even if it is unclear when the condition will flare up and require time off.”[6] Since the intermittent leave approved for Render was “foreseeable” according to Judge Clay, he only needed to give formal notice one time — when he initially sought the intermittent leave — and need not give formal notice each and every time he called in to use his FMLA leave.[7]  For the absences and tardies applicable to Render, that meant he only needed to provide the employer enough notice that he was wanting to use his intermittent leave.[8] Render need not reference either the qualifying reason for leave or the need for FMLA leave.[9] Judge Clay found Render’s calls satisfied his minimum regulatory obligations under the FMLA since they mentioned “flare ups” which was mentioned in his initial application for FMLA intermittent leave.

Judge Moore and Judge Suhrheinrich, on the other hand, determined that leave is unforeseeable when the timing of the leave is not foreseeable or “unknowable in advance.”[10] “In short, the difference between foreseeable and unforeseeable leave is the difference between knowing and not knowing when leave will be needed before the time comes to request it.[11] After quoting cases from the 11th, Fifth, Sixth and Second Circuits, the majority stated that employees with known health conditions that result in sudden, acute flareup of symptoms must follow the notice requirements for unforeseeable leave explained in 29 C.F.R. §825.303.[12]

After establishing that the leave was unforeseeable, the court then turned to whether Render’s notice complied with the FMLA. Unlike the notice for foreseeable leave, if the leave is unforeseeable the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.[13] In other words, the notice requirements for unforeseeable leave are more rigorous. Merely saying “I am out sick” is not sufficient notice under 29 C.F.R. §825.303. The court found Render had met this heightened notice requirement because he had mentioned that he was having a “flare up” and he advised his supervisor that he was asking for FMLA leave when she questioned him about his absences and tardies.[14]

In general, employers can establish call-in policies for reporting absences, and they may deny FMLA leave if an employee fails to follow the policy.[15] Although the district court found Render had not followed FCA’s call-in notice policy, the Sixth Circuit reversed, concluding that Sedgwick’s correspondence to Render was “so confusing” that even an FCA human resources representative “could not decipher what it was asking employees to do.”[16] Based on this record, the Sixth Circuit held a jury could find that Render “gave proper notice of his intent to take FMLA leave,” under both the FMLA statutory requirements and the internal policies of FCA thereby making out a prima facie interference cause of action.[17]

Since the Sixth Circuit found Render had established that he engaged in protected activity and that FCA knew about that protected activity when it terminated him, it reversed the summary judgment as to the retaliation claim as well.  

Rick Bennett is a partner with Farris Bobango Branan PLC.  Mr. Bennett’s primary areas of practice include labor & employment law, construction law, and general civil and business litigation. He received his undergraduate degree from the University of Tennessee, Martin and his law degree from the Cecil C. Humphreys School of Law at the University of Memphis. He may be reached at (901) 259-7100 or rbennett@farris-law.com.