On August 15 in Roberts v. Gestamp W. Va., LLC, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) concluded that a jury must decide whether an employee’s Facebook message to his supervisor satisfied his notification obligations under the Family and Medical Leave Act (FMLA).
The employer had written attendance and leave policies that require employees to notify their supervisor by phone at least 30 minutes before the employees’ shift is scheduled to begin if they are going to be late or absent. If they fail to notify their supervisor for three consecutive shifts, the employer considers the employees to have abandoned their job and it will then terminate their employment.
In this case, the plaintiff underwent an emergency appendectomy. While in the hospital, he sent his supervisor a Facebook message notifying him of the situation. The employee had used Facebook Messenger on prior occasions to discuss his attendance at work related to other medical conditions. The supervisor, on one occasion, even initiated a Facebook conversation to discuss attendance at work unrelated to this incident. The plaintiff and his supervisor communicated back and forth over the period of several months about him being out of work until he was cleared to return to work.
After about four days back on the job, the plaintiff messaged his supervisor on Facebook asking to see him. He shared that he was in pain, and his supervisor told him to leave early that day. A few days later, he messaged his supervisor informing him that he was still in pain and not able to come to work. Several days after this, the plaintiff messaged his supervisor again and told him that he was being admitted back into the hospital and was unsure “how long [he was going to] be in there.” The supervisor never responded. While the plaintiff was absent and in the hospital, his supervisor reported his absences to human resources. He eventually returned to work a few weeks later, only to learn that he had been fired for job abandonment.
In order for employees to qualify for FMLA leave, the employees must (among other things) notify their employer of their need for leave. Though no magic words are required, the employee must provide sufficient information for the employer to reasonably determine whether FMLA may apply to the leave request. And even when the need for leave is not foreseeable, the employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.
The question before the Fourth Circuit was whether there was any chance that a jury could find that Roberts used a “usual and customary” method to notify his supervisor of his need for leave through Facebook Messenger. If so, then it was not up to the court to decide on a motion for summary judgment, and the issue should have been sent to the jury to make that determination.
In answering this question, the Fourth Circuit held that even if an employer has a written leave policy, an employee can provide evidence that the employer also accepts informal absentee notices in practice that would qualify as “usual and customary.” Because the plaintiff and his supervisor had numerous discussions about his hospital stays and when he could return to work using Facebook Messenger, the Fourth Circuit concluded that a reasonable jury could find that his Facebook messages to his supervisor satisfied the company’s “usual and customary” notice procedures under the FMLA.
The two takeaways from this case are that employers need to make sure that their attendance policies are followed, and perhaps most importantly, employers need to ensure that all management level staff are properly trained so they can put HR on notice when an employee could need medical leave. Some employers decide to discourage the use of social media and text messages for communicating with employees due to difficulties in confirming receipt and documenting the communications.
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