August 22nd, 2022

Employers Take Note: Your FLMA Notice Procedures May Be More Permissive Than You Think After Recent Fourth Circuit Decision

Employees wishing to take advantage of protected leave under the Family and Medical Leave Act (FMLA) do not necessarily need to comply with notice procedures set forth in a company’s employee handbook, according to a decision last week from the U.S. Court of Appeals for the Fourth Circuit. According to the Court, an employee can satisfy his or her obligation to use a company’s “usual and customary” procedures for requesting FMLA leave by using “any method” the employer has “regularly accepted” by “informal practice or course of dealing with the employee,” even if that method does not comply with officially mandated procedures.

In the case before the Court, for example, the employer’s formal policies required employees to notify management of any absences via a designated telephone call-in number. However, management had regularly communicated with the plaintiff employee about emergency medical absences over a period of several weeks via Facebook Messenger. The Court held that a reasonable jury could find that the employee’s subsequent FLMA notice via Facebook Messenger complied with the company’s “usual and customary” procedures, even though he failed to use the company-mandated call-in number.

The Court’s opinion, in Roberts v. Gestamp West Virginia, LLC, Case No. 20-2202 (4th Cir. Aug. 15, 2022), means employers who wish to strictly enforce company-mandated FLMA notice procedures must take care to avoid a pattern and practice of accepting alternative notice methods. Conversely, employers who receive non-compliant FMLA notices should determine whether alternative notice methods may have been established by “usual and customary” practice before taking adverse action against employees. The decision is binding on federal courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

Grammata Law Firm helps clients navigate disputes involving current and former employees, including employment discrimination claims, non-compete issues, and other employment matters. For more information, contact Grammata at 202-937-0458 or .