Second Circuit Takes Expansive View of Employer Obligations Under the FMLA
Employers often ask what they are permitted and what they are required to do with respect to an employee requesting leave under the Family and Medical Leave Act (“FMLA”). In a decision issued on February 9, 2017, the United States Court of Appeals for the Second Circuit arguably added to, or at least expanded upon, an employer’s obligations when an employee seeks leave under the FMLA. Specifically, in Coutard v. Municipal Credit Union, the appellate court overturned a decision by the lower court and held that the employer credit union had an obligation to request from its employee any additional information that it needed in order to determine if the employee was eligible for FMLA leave, where the initial information from the employee did not definitely show eligibility for FMLA leave.
In Coutard, the plaintiff sought leave under the FMLA to care for his seriously ill grandfather. The employer denied leave on the grounds that, in general, a grandparent is not a family member covered under the statute. However, the FMLA does permit leave to care for a “parent,” which is defined to include any individual “who stood in loco parentis” to the employee when the employee was under 18 years of age. In this case, Coutard’s grandfather had raised him from the ages of 4 to 14 after Coutard’s father passed away, and, thus, Coutard’s grandfather met the definition of “parent” under the FMLA. However, Coutard did not provide the specifics of his relationship with his grandfather, and the employer did not ask. The issue in the case was whether the burden was on Coutard to ensure that he made all relevant facts clear to his employer, or whether the employer was obligated to seek additional information from, and provide clarification to, Coutard.
The lower court ruled in favor of the employer, finding that the burden was on Coutard to give the employer all facts necessary for the employer to make a determination on whether the requested leave qualified for FMLA leave. As noted above, the appellate court reversed that decision and placed the burden on the employer to follow up with the employee to make sure it had all facts relevant to determine if the leave qualified for FMLA leave. The appellate court held that the respective obligations of the parties can be determined from the language used in the regulations implementing the FMLA. In particular, while the regulations provide that an employee is obligated to provide notice to the employer sufficient to suggest that the requested leave “may” reasonably fall within the protection of the FMLA, the employer “must” inform the employee if it requires additional information to determine if the requested leave falls within the statute. Thus, the court held:
“…we conclude that the obligation of an employee to give notice of his need for FMLA leave is not the obligation…to provide the employer with all of the necessary details to permit a definitive determination of the FMLA’s applicability at or before the time of the request. Rather, in the absence of a request for additional information, an employee has provided sufficient notice to his employer if that notice reasonably indicates that the FMLA may apply.”
In other words, so long as the employee provides the employer with information reasonably suggesting that FMLA leave may apply, it is up to the employer to request and obtain such additional information as needed to make a determination of whether or not the leave would fall within the FMLA. In this regard, the court also noted that the FMLA and its implementing regulations recognized that there are many different, non-traditional familial relationships – hence the definition of “parent” to include any individual who was “in loco parentis” to an employee when the employee was under 18.
The lesson of the case is clear – if an employer receives notice from an employee that reasonably suggests the FMLA may apply, it is obligated to obtain from the employee any additional facts needed to determine if, in fact, FMLA leave is available – keeping in mind that there are non-traditional relationships that may fall within the protections of the FMLA even though they do not appear so on their face.
If you have any questions about compliance, or are unsure how this new enforcement initiative may impact your business, please contact the Labor & Employment attorney at Barclay Damon with whom you normally work or any attorney in our Labor & Employment Practice Area.