ninth Circuit Court docket Upholds FMLA Obligations to Notification Procedures

By Jason Wilson Last updated Jul 15, 2021

On June 17, 2021, the U.S. District Court for the District of Oregon issued an opinion and order in the Munger v. Cascade Steel Rolling Mills, Inc. case, denying a worker’s claims under the Family and Medical Leave Act (FMLA) and an analogous state were treated after the employee left the employment relationship for excessive unexcused absenteeism. The main question in the court was whether the employee was entitled to FMLA leave if the employee had not complied with the usual and customary notification obligations of his employer when applying for FMLA leave. The court issued a summary judgment in favor of the employer, affirming that failure by the employee to comply with the employer’s notice obligations normally precludes the employee’s right to the protection of the FMLA.

background

Joseph Munger Sr. worked for Cascade Steel Rolling Mills, Inc. as a billet crane operator for more than 20 years. Cascade, an FMLA employer, has maintained a written policy that requires all employees to contact Cascade’s external administrator directly to request sick leave. Cascade’s policy specifically stipulated that submitting a medical certificate would not automatically excuse absences. Cascade posted its sick leave policy to eight departments in the workplace and mailed copies of the policy to all employees, even though Munger declined to receive a copy of the policy in the mail.

In addition to its sick leave policy, Cascade maintained a written attendance policy that required employees to experience attendance “incidents” in the event of unexcused absences. According to Cascade’s progressive disciplinary policy, the accumulation of 9 incidents within a 12 month period would result in an employee terminating their employment.

On May 25, 2016, during a shift that had started the previous evening, Munger left work prematurely due to severe abdominal pain. He then quit work for two consecutive shifts and submitted two medical certificates to Cascade Human Resources stating that he would be back to work on May 27, 2016. Munger did not contact Cascade’s external administrator to request a medical suspension. On May 27, 2016, he had already exhausted his quota of “sick leave hours” from Cascade.

On May 31, 2016, Kimberly Bartlett, a Cascade HR coordinator, emailed Munger informing him that he should contact the Cascade External Administrator by the end of the day to request a sheltered medical leave , or he would get three unexcused attendance absences. Due to Munger’s past absence, the additional incidents would put Munger above the 9-job termination threshold under Cascade’s progressive disciplinary policy.

On June 1, 2016, Cascade’s external administrator reported to Cascade that Munger had not contacted him to file a medical suspension request. The next morning, Munger’s superiors met with him and handed him a notice that Munger would be issued three attendance incidents in May 2016 because of his unexcused absences. Munger told his managers that his absences were covered by the FMLA and the analogous state law, the Oregon Family Vacation Act (OFLA). Munger also denied having received Bartlett’s email dated May 31, 2016, claiming he complied with the FMLA’s termination obligations by canceling work and filing medical certificates. Munger was eventually released due to his accumulation of more than 9 attendance incidents within 12 months.

Following Munger’s dismissal, United Steelworkers, Local 8378, who had served as the exclusive collective bargaining agent for all production and maintenance workers at the facility that employed Munger, commenced arbitration on Munger’s behalf. The union made many of the same legal arguments that were later raised by the court, including violations of the FMLA and OFLA. The labor arbitrator eventually decided in favor of Cascade and confirmed Munger’s termination of employment in accordance with the provisions of the applicable collective agreement.

On June 1, 2018, Munger filed a lawsuit in the US District Court for the District of Oregon, alleging interference and retaliation under the FMLA and OFLA in the relevant part. The parties made counter motions for an interim judgment.

Analysis of the court

The court began its analysis by stating that it would examine Munger’s FMLA and OFLA claims together, as Oregon law provides that “OFLA claims should be interpreted as closely as possible to conflict with similar provisions of the [FMLA]. ‘“The court relied on the FMLA to judge claims under both statutes.

The court focused its analysis on the validity and enforceability of Cascade’s disclosure requirements. The FMLA regulations cited by the court expressly state that an employer “can require an employee to comply with the employer’s customary and customary termination and procedural rules for applying for leave, unless there are exceptional circumstances”. The rules also provide, for example, that an employer “can require employees to call a specific number for a specific person to request leave”. The case law cited by the court also made it clear that the FMLA does not prohibit employers from disciplining employees for failure to comply with the termination obligations or for separation from the employment relationship.

Munger attempted to distinguish Cascade’s policy from what is allowed under the FMLA, arguing that Cascade’s policy discriminates against FMLA applicants. Specifically, Munger pointed out that according to Cascade’s guidelines, applying for FMLA leave requires an additional step – contacting an outside administrator – that is not required to apply for other forms of leave. The court rejected this argument, clarifying that “nothing in the text of the [applicable] Ordinance prohibits an employer from requiring additional procedures for terminating FMLA leave. ”The court also cited several cases where courts had expressly ruled that guidelines requiring employees to contact outside administrators to help FMLA – Requesting leave (but not necessarily other forms of leave) does not violate the FMLA.

After the court found that Cascade could lawfully punish Munger for failing to comply with its customary and customary reporting obligations, the court found, based on the evidence, that Munger was indeed aware of Cascade’s policies. The court also found that despite his dismissal and submission of two medical certificates, Munger had not provided sufficient information to inform Cascade of his need for FMLA vacation, further undermining his entitlement.

Since Munger was unable to demonstrate that he had properly notified Cascade, the court issued a summary judgment in Cascade’s favor of the FMLA and OFLA interference and retaliation claims.

The central theses

The Munger Decision offers some important lessons for insured employers regarding the termination obligations of employees under the FMLA.

First, employers should consider putting in place guidelines on leave-of-absence if they don’t already have one. Whether the policy requires a call or email to an outside administrator, the employee’s manager, the employer’s human resources department, or a combination of these, an out of office notification policy can help manage FMLA vacation requests and combat FMLA abuse help.

Second, employers may want to ensure that employees are properly informed of all leave-of-absence policies. If an employee did not adequately inform the policy, the employee can claim that he or she did not have to comply with the policy. Employers should consider having their employees sign their leave of absence guidelines, posting their guidelines in the workplace, including their guidelines in their employee handbooks, and distributing their guidelines by mail and / or email. It can also be helpful to remind an employee of his or her obligation to give notice.

Third, employers may want to review their leave of absence policies to ensure that workers provide sufficient information for employers to determine whether FMLA leave is required. Vague vacation requests, even if submitted in the form of a medical certificate, usually do not provide the information necessary to assess the applicability of the FMLA.

Finally, the insured employers should remember that the FMLA regulations contain an exception to the standard of the “usual and customary notice period” in cases of “unusual circumstances”. Employers should consider asking employees why they did not follow the notification of absence guidelines to determine if there are “exceptional circumstances” that could lead to an exception.