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Eleventh Circuit Court of Appeals Backs Employer’s Denial of FMLA Leave

In this episode of Decision Dive, Balch’s Jason Tompkins, Chair of Balch & Bingham’s Issues & Appeals Practice, is joined by Christina Pantazis, attorney in the firm’s Labor & Employment Practice, to explore the Eleventh Circuit’s new decision backing an employer’s denial of FMLA leave.  

This decision impacts any employer who is subject to the Family and Medical Leave Act (FMLA), which includes most employers with more than 50 employees. 

As we dive into the Kadribasic v. Wal-Mart, Inc. decision, Jason and Christina discuss the case, the issues the Court considered and the decision’s impact on companies. They explain why having an established FMLA request policy can protect companies. 


Decision Dive: 

Hosted by Balch & Bingham’s Jason Tompkins, Decision Dive is a video series exploring the impact of new, key appellate rulings from the United States Courts of Appeals for the Fifth and Eleventh Circuits, and decisions from State Supreme Courts across the Southeast and Texas.  Jason will be joined by guests from across the firm’s footprint to discuss how the new decisions impact companies moving forward. 

Jason is a partner in the firm’s Birmingham office and Chair of Balch’s Issues & Appeals Practice.


Jason: Welcome to Balch's Decision Dive, where we'll explore new appellate decisions and the impact that they have on companies moving forward. I'm Jason Tompkins, Chair of the Issues and Appeals Practice. And joining me today is Christina Pantazis, attorney in our Labor & Employment Practice. Today, we're going to explore the decision of Kadribasic v. Wal-Mart, a recent decision from the Eleventh Circuit holding that an employee was not entitled to FMLA leave for failing to comply with Walmart's internal policy regarding requesting leave. Christina, who's impacted by this decision? 

Christina: Really any employer with over 50 employees would be impacted by this decision. If the FMLA applies to you, then this is something you should be considering. 

Jason: What's the main takeaway from the Eleventh Circuit's decision here? 

Christina: The main takeaway is that having an established practice for reporting and requesting FMLA leave can really protect your company. 

Jason: So let's talk about the facts that led to this decision. Ms. Kadribasic was an employee of Walmart and she worked at a Sam's Club. She had some performance issues beginning in 2018, and she had some leave unrelated to this case during that time as well. But when she returned from her maternity leave, she suffered an on-the-job back injury. While she notified the third party claims administrator of her injury itself, she never actually requested FMLA leave. She was ultimately terminated on the same day that she requested FMLA leave, before anyone at Walmart knew that she had requested it. So on appeal then, the issue was whether she gave proper notice in order to be entitled to FMLA leave. The court focused in the first part of its opinion on the fact that the parties agreed that her FMLA leave was unforeseeable. Why is that important? 

Christina: Under the FMLA, there are certain timing and content requirements in order for an employee to be eligible for leave. Obviously, when you have a foreseeable request, that's something that's really easy when you have a scheduled surgery or might be out for a reason that you know about in advance. But when it's unforeseeable, what can an employee do to let their employer know that they're going to be out? Under the regulations, if the employer has a usual and customary notice and procedural requirement for requesting leave, it can protect the employer by requiring the employee to give notice in a certain way. 

Jason: And so here it was undisputed that the plaintiff did not give notice in that way. And so, one of the other points that the court focused on was whether there were unusual circumstances present. Tell us a little bit about why unusual circumstances would matter and what would constitute unusual circumstances. 

Christina: So the statute is pretty vague on what an unusual circumstance is. The Court considered a few examples of what might be considered an unusual circumstance in certain scenarios. For example, the employee is getting some kind of emergency medical treatment and isn't capable of calling or using a routine call line or maybe isn't capable of contacting their supervisor. In this case, the employee had ample time to report her leave and even had reported a separate leave during the time period that was at issue. So the Court wasn't persuaded that unusual circumstances were present. 

Jason: So the final point that the Court discussed in this decision that could have excused the plaintiff from following the notice requirements outlined by Walmart was if Walmart had waived those requirements. So what types of actions can lead to an employer's waiver of its notice requirements and why did the court not find those present here? 

Christina: So what's really important in waiver is training both your employees and their managers on your policy and making sure that they're following the policy and the steps required to provide notice of FMLA leave. You can imagine a situation where a manager might say something like, "It's okay. Just go ahead and take the leave." And according to the Court, that might be waiver in the future. The Court didn't hold in this case because those facts weren't present. But making sure that your managers and your employees know what the rules are and that they follow those rules every time they request to leave is really important. 

Jason: So it sounds like after this decision, that employers subject to FMLA should ensure that they have detailed written policies of their notice requirements, and that they train their supervisors and managers on those requirements, and that they distribute information to all their employees about their notice requirements. Is there anything else that you'd recommend companies do going forward after this decision? 

Christina: I think you've pretty much covered it. Really making sure that those policies, employees have them and understand them and know where to go when they're requesting FMLA leave can really help you out in the event that you find yourself in a situation where a plaintiff says that they've been denied leave illegally. 

Jason: Thanks for joining us for Decision Dive. I'm Jason Tompkins and I want to thank Christina Pantazis for joining us today for this decision. And we'll see you next time if there's breaking news from one of the appellate courts.