A recent Federal Court case demonstrates the advantage an employer enjoys by including FMLA notice requirements in its employment handbook.
In Everson v. SCI Tennessee Funeral Services, LLC, 2018 WL 1899368, (M.D. Tenn. Apr. 20, 2018), Plaintiff Ommer Everson alleged unlawful employment practices against his former employer, Defendant SCI Tennessee Funeral ServicesLLC. Plaintiff asserted claims under the Family and Medical Leave Act (“FMLA”) and the American with Disabilities Act (“ADA”). Specifically, Plaintiff alleged FMLA retaliation and interference, and ADA disability discrimination, retaliation, and failure to accommodate.
This article focuses on the FMLA interference claim.
Plaintiff was employed by Defendant as a funeral director and then a general manager from 1996 until January 11, 2015.  Plaintiff was diagnosed with Meniere’s Disease in 2000, but does not recall it affecting his work until 2010 when he had his first outpatient ear procedure.  Prior to his ear procedure in 2010, Plaintiff notified Jeffrey Duffer, Defendant’s Market Director and Plaintiff’s supervisor, of his ear condition and requested approximately one week to ten days off from work, which Duffer granted.  In October 2014, Plaintiff had a second ear procedure and requested an afternoon off from work for the procedure, which Duffer granted. 
On January 9, 2015, Plaintiff informed Duffer that he was scheduled for a third ear procedure at the end of January and requested approximately one week off of work.  Duffer responded, “That’s fine. Whatever time you need.”  Plaintiff was terminated from his position two days later and claims that the reason given for termination was a pretext for discrimination. 
In response, Defendant argued that Plaintiff was terminated for leaving an unembalmed body at one of the facilities without refrigeration in violation of Defendant’s policy.  Defendant denied discriminating or retaliating against Plaintiff under the ADA and FMLA, denied interfering with Plaintiff’s FMLA rights, and denied failing to accommodate Plaintiff’s disability. Defendant sought summary judgment on all of Plaintiff’s claims.
To establish a prima facie case that Defendant interfered with Plaintiff’s FMLA rights, Plaintiff must show: (1) he was an eligible employee; (2) Defendant was an employer subject to the FMLA; (3) he was entitled to leave under the FMLA; (4) he gave Defendant notice of his intention to take FMLA leave; and (5) Defendant denied him FMLA benefits to which he was entitled. Romans v. Michigan Dept. of Human Services, 668 F.3d 826, 840 (6th Cir. 2012).
The fourth and fifth elements were disputed in this case. Defendant argued Plaintiff: (1) failed to provide notice of his need for FMLA leave; and (2) was never denied any benefits to which he was entitled.
To invoke FMLA protection, an employee must provide notice and a qualifying reason for requesting leave. Notice must take a certain form, namely, the employee must “comply with the employer’s usual and customary notice and procedural requirements…absent unusual circumstances.” 29 C.F.R. § 825.302(d); Cundiff v. Lenawee Stamping Corp., 597 Fed. Appx. 299, 300 (6th Cir. 2015). This regulation, which took effect January 16, 2009, “explicitly permits employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances.” Srouder v. Dana Light Mfg., LLC, 725 F.3d 608, 614 (6th Cir. 2015). “An employee also may be required by an employer’s policy to contact a specific individual.” Alexander v. Kellogg USA, Inc., 674 Fed. Appx. 496 (6th Cir. 2017) (quoting 29 C.F.R. § 825.302(d)).
Defendant contended that Plaintiff failed to give notice of his intent to take FMLA leave. Specifically, Defendant asserted that Plaintiff failed to follow Defendant’s notice requirements and contact the SCI Leave and Disability Center to request FMLA leave as outlined in the employee handbook.  In response, Plaintiff argued that the law does not require an employee to invoke the FMLA by name.  Plaintiff contended that providing notice to Duffer that he needed a week off in late January for a procedure related to his Meniere’s Disease was sufficient to put Defendant on notice that he was invoking FMLA protection. 

Prior to 2009, Plaintiff’s arguments would have had merit. However, the 2009 amendment to 29 C.F.R. § 825.302(d) “explicitly permits employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances.” Srouder, 725 F.3d at 614. 


Defendant’s employee handbook required employees to contact the SCI Leave and Disability Center to give notice of any FMLA leave.  Plaintiff received, read through, and signed Defendant’s employee handbook acknowledging his familiarity with it.  However, Plaintiff never requested FMLA leave or asked anybody at SCI for FMLA leave.  Plaintiff did not identify any unusual circumstances that would prevent him from complying with Defendant’s notice requirement for FMLA leave.

Therefore, the Court held that because Plaintiff failed to comply with Defendant’s notice requirement for requesting FMLA leave, he was unable to establish a prima facie case for interference. The Court granted Defendant’s motion for summary judgment on Plaintiff’s FMLA interference claim.