Checking in with the employee periodically to see how they are doing is legal – just don’t ask them to do any work while they are on leave.[1] 29 CFR §825.305(b).[2] 29 CFR §825.200[3] 29 CFR §825.207(b)[4] 29 CFR 825.302(a).[5] 29 CFR 825.302(e).

The 2009 regulation clearly states: “[w]here an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.” 29 C.F.R. § 825.302(d). Based on the changes to the regulation, the Court found Cavin was no longer controlling.

terminated on January 8, 2018. He sued FCA, accusing his former employer of wrongfully denying him FMLA leave and retaliating against him for requesting FMLA leave.At his deposition, Render said he was “embarrassed” to specifically mention that he was suffering from anxiety and depression when he called in to report his absences and tardies.FCA’s human resources representative gave contradictory statements at her deposition about how employees were required to report FMLA absences, and the record showed that the employer knew Render was claiming FMLA leave to cover his tardies and absences by December 8, when he returned to work and spoke with one of his supervisors.A district court granted summary judgment in favor of FCA, ruling that Render had not properly requested FMLA leave.The federal appellate panel reversed.Beginning with the interference claim, the Sixth Circuit focused on the element of notice. Render’s intermittent leave was governed by the statute’s foreseeable leaves at 29 C.F.R. Sec. 825.302, the court said, which provides that “notice need only be given one time, but the employee shall advise the employer as soon as practicable if dates of scheduled leave … were initially unknown.”“Therefore, Render did not need to give formal ‘notice’ each and every time he called in to use his FMLA leave,” the panel wrote. “Rather, the regulation indicates that he needed to meet the notice requirement when he first sought approval for intermittent leave because this was when FCA first learned about his qualifying condition.”Render’s formal FMLA approval process satisfied the one-time notice requirement for intermittent leave, and his subsequent calls on the days he wanted to use his leave did not need to specifically reference either the qualifying reason for leave or the need for FMLA leave, the court explained.“Render was under no obligation to cite the reason for his absence with such specificity because he had already given FCA formal notice of his qualifying condition,” the court

obligation to provide notice, 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.So, the statute makes clear that the employee needs “to state a qualifying reason for the needed leave.” However, the employee may or may not expressly assert or mention the FMLA to trigger notice. Rather, providing information to the employer that the employee needs to be absent from work for a “qualifying condition,” which would be for an injury, illness or medical condition of a “severe health condition.”As indicated, before determining whether what communications qualify as adequate notice, it must be determined if the need for the leave is “foreseeable” or “unforeseeable.”Which Is It – Foreseeable or Unforeseeable Leave?It is much debated whether intermittent leave is falls into the category of “foreseeable leave” under 29 C.F.R. §825.302 or “unforeseeable leave” under 29 C.F.R. § 825.303. For that matter, even the judges involved in this most recent decision were split on determining which class applied. Nevertheless, the analysis invoked by the Sixth Circuit’s panel is instructive for human resources managers making these decisions.The lead opinion by U.S. Circuit Judge Eric L. Clay determined that intermittent leave falls into the “foreseeable leave” category. This is because “the regulation governing foreseeable leaves includes specific procedures that apply to requests for intermittent leave” but “the regulation on unforeseeable leaves never mentions intermittent leave.”That seems simple enough, but does it make sense? Yes, according to Judge Clay. He provided this reasoning:“This may seem counterintuitive, since the point of intermittent leave is that an employee asking for approved FMLA leave for unexpected and unpredictable absences. But, as this Court [i.e., Sixth Circuit] has explained, ‘intermittent leave is

Under the FMLA, an employee is required to comply with the employer’s “usual and customary and usual notice and procedural requirements for requesting leave, absent unusual circumstances.” 29 C.F.R. § 825.302(d). Many manufacturing employers have implemented attendance policies or procedures requiring, for example, notice of an absence at least one hour before a shift starts.

Further, the April Regulations note that the emergency responder definition extends to “anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19.”2 29 C.F.R. § 825.302(f).

110(a). [4] 29 C.F.R. § 825.302(e), § 825.302(f).

Providing notice to his supervisor for a procedure related to Meniere’s disease was sufficient to notify SCI that Everson was invoking FMLA protection. Siding with SCI, the Middle District of Tennessee granted summary judgment, holding that the 2009 amendment to 29 C.F.R. § 825.302(d) “explicitly permit[ted] employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances.” The court explained that despite the fact that Everson had received, read, and signed SCI’s employee handbook, he never requested FMLA leave or asked anyone at SCI for FMLA leave.

The Seventh Circuit disagreed that the employer was entitled to summary judgment. As the Seventh Circuit pointed out, foreseeable leave is governed by 29 C.F.R. § 825.302(c). Gienapp, No. 14-1053, p. 3.

As the court explained, the regulations provide that the employer does not have to expressly assert rights under the FMLA or even reference the FMLA, but that the employer should inquire further of the employee if necessary to have more information about whether FMLA leave is sought and to obtain the necessary details about the leave. 29 C.F.R. § 825.302(c). The Ninth Circuit concluded that “[a]n employer’s obligation to ascertain ‘whether FMLA leave is being sought’ strongly suggest that there are circumstances in which an employee might seek time off but not intend to exercise his or her rights under the FMLA.”