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BTW, texting a supervisor may not be sufficient notice to invoke FMLA protections

June 17th, 2013  |  Lorene Park

In an era when text messages seem more common than phone calls, it should come as no surprise that courts are now addressing when texts to supervisors are sufficient to provide an employer with notice of the need for potentially FMLA-qualifying leave. It appears that brief text messages are not enough and employers are not required to read between the lines. Whether the employer had a call-in policy (requiring the employee actually speak to someone) and whether the employee knew the proper way to request FMLA leave and did not do so appear to be significant factors in the analysis.

In an unpublished June 12, 2013 decision, the Fifth Circuit ruled that a text message requesting to be taken off 24-hour-call duty one night was insufficient to put an IT business analyst’s employer on notice that she was requesting FMLA leave to care for her father (Lanier v University of Texas Southwestern Medical Center). The analyst texted her supervisor that her father was in the emergency room and she could not be on call that night. He responded that he would provide coverage. On a later date, when the analyst failed to respond to pages, he asked her to verify that she was following correct procedures. She cursed and stormed out. The employer subsequently accepted her resignation. Affirming summary judgment for the employer on her FMLA interference and retaliation claims, the Fifth Circuit explained that the analyst’s statements were insufficient to invoke the Act. Her only request for leave was a text message and, even if her supervisor knew her father was elderly and in poor health, it was unreasonable to expect him to inquire further or know that her text was a request for FMLA leave. Having taken FMLA leave in the past, the analyst knew the proper way to request it, yet she did not do so. Because she did not engage in an FMLA-protected activity, her retaliation claim also failed.

In another case, an employee fired for violating a “call-off” absence policy could not proceed with her FMLA interference claim because, even assuming the employer somehow knew of her mental health issues, her text messages to her supervisor did not provide sufficient notice of her intent to take leave to trigger the employer’s FMLA obligations, found a federal district court in Michigan (Banaszak v Ten Sixteen Recovery Network, June 11, 2013). The court explained that the critical question is whether the information was sufficient to reasonably notify the employer that the employee was requesting time off for a serious health condition. Here, it was not. Instead of calling in, the employee simply texted her supervisor that she was “not well.” Despite the supervisor’s numerous attempts to call the employee for further information over the next few days and to leave messages requesting that the employee call her back or provide a doctor’s note, the employee merely texted her doctor’s contact information (with nothing more) and then later texted “As of today, I will be off until July 12th per my doctor for medical reasons.” Finding these texts to be insufficient notice, the court granted summary judgment for the employer.

These cases indicate that, to date, texting brief messages, without more, is not enough to invoke FMLA protections. However, this issue is still emerging and the analysis may change. Further, in light of the expense of litigation (and even reaching the summary judgment stage) employers are well advised to specifically address text messages in their absence or call-in policies. Given the uncertainty involved in whether supervisors have texting on their cell phone plans (if they use their own devices), whether a text has actually been received, and whether it includes sufficient information to constitute FMLA notice, it might be a good idea to explicitly exclude texting from the call-in policy and require that an employee actually speak to someone.

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