Employee’s text not good FMLA notice

published in Oklahoma Employment Law Letter | September 1, 2013

By Charles S. Plumb

I recently received a text from someone who was sitting across the table from me. I was looking right at him. Same-room texting — for me, this was a technological first.

No question that technological advances are affecting the workplace. And sometimes these advances complicate managing employee issues. Let’s look at how texting and managing Family and Medical Leave Act (FMLA) leave came into play for the University of Texas Southwestern Medical Center (UTSW).

IT department’s on-call responsibilities

Chrisanne Lanier worked for UTSW in its IT department as a business analyst. Business analysts were responsible for maintaining the medical center’s information systems and assisting other employees who were having technical problems with the systems. In addition to a daytime shift, each business analyst was assigned to a rotating schedule of on-call duty. This system provided 24-hour support coverage.

While assigned to on-call status, a business analyst had a pager, an on-call laptop computer, and a service manual detailing how common technical problems could be solved. If a UTSW employee had a problem after hours, she paged the on-call business analyst, who was expected to respond within 15 minutes. If the employee didn’t receive a response within 15 minutes, she was to contact an alternate.

Business analysts were assigned to on-call status once every 12 weeks, and each on-call assignment lasted seven days. Lanier didn’t like her on- call assignments because they disrupted her sleep. She made repeated requests to her supervisor, Tim Leary, to change her seven-day on-call rotation to a three- or four-day rotation, but her requests were denied.

Lanier’s text: Can’t cover on-call

Lanier was assigned on-call duty for the week of September 1. On September 2, Leary received a text message from her explaining that her father was in the emergency room and she couldn’t cover her on-call duty that evening. Her father was 90 years old, and she had mentioned to Leary earlier that morning that he was having difficulty breathing. Leary and Lanier arranged for a coworker to swap on-call rotations.

As a result of the swap, Lanier was assigned on-call status for September 23. An employee contacted Leary complaining that he had tried to reach Lanier six times for assistance that evening but hadn’t received any response. At that point, Leary replaced her for on-call duty. When he spoke with her to find out why she hadn’t responded to the multiple pages for on-call assistance, she handed him her laptop, threw her pager out of her cubicle, and said, “I’m so f____ pissed at you for what you did on my father’s heart attack.” She then walked out of the office.

Not surprisingly, Leary accepted Lanier’s apparent resignation. Not to be outdone, she sued UTSW and her supervisors for violating her rights under the FMLA. She claimed her employer and supervisors had interfered with her FMLA rights and had retaliated against her for asking to miss her September 2 on-call assignment while her father was in the emergency room.

Text wasn’t sufficient as FMLA notice

Lanier’s lawsuit against her employer and supervisors came down to whether her September 2 text to Leary amounted to proper notice of her intention to take FMLA leave. To invoke rights under the Act, an employee isn’t required to specifically use the phrase “FMLA leave.” It’s enough for her to provide a supervisor or HR professional with enough information that reasonably puts the employer on notice that she may need FMLA leave. Depending on what statements the employee makes, the employer may have an affirmative duty to inquire further to decide whether FMLA leave applies.

In this case, the court found Lanier’s September 2 text wasn’t sufficient to put Leary and UTSW on notice that she had a need for FMLA leave. The text was her only request to be relieved from the on-call assignment that evening. She didn’t provide any other information to her employer. When it came to FMLA leave, Lanier was no rookie. She had taken FMLA leave in the past and was well aware of the proper way to request such leave. Her lawsuit against UTSW was dismissed. Lanier v. University of Texas Southwestern Med. Center, 12-10928 (5th Cir., June 12, 2013).

What we learned

The FMLA offers employees a lot of leeway for requesting leave. The law also places responsibility on employers to investigate whether the Act applies, assuming the employee provides sufficient information to put the employer on notice. But as this case illustrates, there is a limit on what is adequate notice of the potential need for FMLA leave.

Now is a good time to review with your workforce their obligations to let you know if they need FMLA leave and how much information they should provide to make sure the leave approval process gets off on the right track. Don’t forget the importance of educating supervisors about how your FMLA policy works and making sure they recognize instances in which FMLA leave may potentially apply.

This case illustrates that how an employee informs her supervisor that she will be missing work — e.g., texting — is less important than the amount of information she provides about why she will be missing work. That doesn’t mean you should ignore texts from employees. It just means you need to pay careful attention to the text’s content.