Follow us on LinkedIn to see future News.
April 16, 2024
In a recent decision of the United States Court of Appeals for the Fifth Circuit, the Court confirmed that, even when an employee is eligible for leave under the Family and Medical Leave Act (FMLA), to be entitled to leave under the statute, the employee must give their employer notice of their intention to take leave. Cerda v. Blue Cube Operations, L.L.C., No. 23-40404 (5th Cir. Mar. 19, 2024). Seems obvious, right? Let’s review the facts.
Elizabeth Cerda worked for Blue Cube from 2006 to April 2020. After rotator cuff surgery in 2017, she took 18 months of leave, 12 weeks of which were pursuant to the FMLA. Cerda exhausted her FMLA entitlement in 2017 and was not eligible for additional leave under the FMLA until August 2019.
Upon returning to work in late 2018, Cerda advised her supervisor that, during her 30-minute lunch breaks, she was going to visit her father to “make sure he had his medicines and something to eat.” For several months, Cerda visited her father during her workday, often taking breaks longer than thirty minutes. Cerda’s supervisor suggested that Cerda talk to Human Resources about her eligibility to take FMLA leave to care for her father.
In early 2020, Cerda approached Blue Cube’s Human Resources manager in a hallway as the manager was leaving another meeting and briefly expressed a desire to explore “possibly getting FMLA for [her] dad.” Cerda never discussed the matter with Human Resources again. Instead, Cerda continued to exceed her allotted break time.
Cerda’s coworkers complained about her absences and Blue Cube conducted an investigation. The investigation revealed that Cerda had been paid for at least 99 hours that she did not work. As a result, Blue Cube terminated Cerda’s employment.[1]
Cerda sued Blue Cube, alleging that the time that she spent with her father was job-protected under the FMLA. Thus, she alleged that Blue Cube’s termination of her employment interfered with her use of her FMLA benefits.[2]
The lower court dismissed Cerda’s claims before trial. The Fifth Circuit affirmed.
An FMLA interference claim requires a showing, among other showings, that the employee gave proper notice of their intention to take FMLA leave. Though an employee is not required to expressly invoke the FMLA, an employee must impart to their employer information sufficient to reasonably apprise the employer of the employee’s need for time off for a serious health condition.
The evidence in the case established only that Cerda had a brief conversation with the Human Resources manager about FMLA leave and that Cerda’s supervisor was aware of the severity of Cerda’s father’s ailments and the care that he required. Cerda conceded that she did not express an intent or desire to take leave. The Court held that this evidence was insufficient to put Blue Cube on notice that Cerda intended to take leave and that such leave qualified for coverage under the FMLA.
Employers: You are not required to be clairvoyant. You can condition FMLA-protected leave on an employee’s compliance with notice and procedural requirements. If an employee does not comply with those requirements, the resulting discipline does not constitute FMLA interference.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
[1] In addition to terminating Cerda’s employment for habitually exceeding her allotted break time, Blue Cube terminated her employment for threatening to expose her coworkers to COVID-19.
[2] Cerda also asserted an FMLA retaliation claim – which failed because her FMLA interference claim failed – as well as claims for sex discrimination and harassment based on conduct in the workplace, which also failed.
