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Imagine you are a busy HR manager or business owner approached in the hall by employee Beth while you are between meetings. Beth briefly mentions a need for “possibly getting FMLA for my dad.” You nod at Beth and go on to your next meeting.

A few months later, Beth’s supervisor Steve asks for an investigation of complaints by co-workers that she is taking overly long lunch breaks. An investigation reveals your company paid Beth for at least 99 hours she did not work. Steve fires Beth.

Beth files a lawsuit asserting violations of the “interference” and “retaliation” provisions of the Family and Medical Leave Act, claiming that she was caring for her ailing father during those lunch breaks and that Steve knew what she was doing.

What now? Has your company broken the law?

Maybe not – if your company has reasonable notice of leave procedures that Beth did not follow.

In Cerda v. Blue Cube Operations, LLC, No. 23-40404 (5th Cir. March 19, 2024), the Fifth Circuit Court of Appeals affirmed summary judgment for the employer against FMLA claims, holding that Elizabeth Cerda failed to demonstrate she gave her employer adequate notice of need or intent to take FMLA qualifying leave. The court’s decision highlights the necessity and value for adopting clear procedures published to employees for requesting leave.

Ms. Cerda had worked for Blue Cube for many years. In 2017, she requested and took leave after rotator cuff surgery. She received FMLA leave for 12 weeks and then received additional leave for another 15 months. When Ms. Cerda returned to work, she told her supervisor, Steven Gibbons, that she was going to visit her ailing father during her 30-minute lunch breaks to “make sure he had his medicines and something to eat.” She told Mr. Gibbons that she could care for her father during her lunch breaks. But Ms. Cerda regularly took longer than the allowed 30 minutes to visit her father.

After Ms. Cerda had been doing this for several months, her supervisor suggested she ask Human Resources about her eligibility for FMLA leave. Sometime in early 2020, Cerda approached Blue Cube's HR manager in a hallway as the HR manager was leaving another meeting. Ms. Cerda never discussed the matter with the HR manager again and instead kept taking lengthy lunch breaks.

In ruling for Blue Cube, the Fifth Circuit emphasized that an employee must give the employer enough information for a reasonable employer to know that the employee needs leave or intends to take leave. Ms. Cerda’s comment about “getting FMLA for her dad” was not sufficient to put the company on notice she intended to take leave and that the leave was for a qualifying reason.

The appellate court further noted that an employer may condition approval of FMLA-protected leave on the worker’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances. In this case, Blue Cube prevailed based on the facts that Ms. Cerda had taken FMLA leave previously, and thus was aware of the process, but failed to follow Blue Cube’s procedures for requesting leave after she made a comment about FMLA in passing to the HR manager.

One more thing helped Blue Cube – the supervisor expressly referred Ms. Cerda to contact the HR manager. The Fifth Circuit noted that the supervisor’s knowledge of the father’s ailments coupled with his knowledge that Ms. Cerda was missing some work might have been enough to trigger the employer’s FMLA obligations, if the supervisor had not instructed her to contact HR.

The reported opinion only indicates that the supervisor told Ms. Cerda to contact HR. The court does not indicate whether the supervisor mentioned the conversation to HR. A best practice would be to train supervisors to properly document conversations with employees that are related to the employee’s health conditions or potential absences to care for family members due to their health conditions. Employers should train supervisors to notify HR and/or upper management any time the supervisors recommend workers inquire about eligibility for leave of absence.

The Cerda v. Blue Cube Operations decision provides a great reminder to employers to review their leaves of absence and accommodations policies, practices, and procedures to make sure those policies, procedures, and practices fully comply with the law and notify employees concerning their responsibilities to request leave and provide reasonably sufficient notice. 

About Our Author

Scott Hetrick is the Adams and Reese Labor and Employment Practice Team Leader, and is a Partner practicing in the Mobile office. Hetrick is a management rights advocate who represents employers on federal and state labor and employment law compliance and dispute resolution. He speaks frequently on employment law and human resource management issues at seminars for personnel managers and business owners and has published numerous articles on employment law. Hetrick has been recognized in Best Lawyers® in Employment Law since 2010, including named “Lawyer of the Year” in Mobile.