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Sometimes a review of Family Medical Leave Act (FMLA) cases feels like the old customer service adage: The customer is always right. But instead of the customer, it’s the employee who often comes out ahead. Today, we report on a different kind of story, a court opinion, one in which the employer and the Third Party Administrator (TPA) administered FMLA correctly, protecting themselves from possible FMLA abuse.

The employer, Kellogg USA, Inc., operated a plant in Roseville, Tennessee. Kellogg outsourced its FMLA administration to a third party administrator (TPA). Kellogg’s absence policy has 2 key components:

  1. Employees intending to be absent must notify Kellogg at least two hours before their start time, using a call service.
  2. Employees already approved for intermittent FMLA leave must report any absence under it to the TPA within forty-eight hours of missing work by phone or online.

The employee, Christopher Alexander, injured his neck after slipping on a wet floor at work. After an extended leave, he returned to work, sought and was approved for ongoing intermittent FMLA leave. On November 20, 2013, he was absent from work and while he notified Kellogg at least two hours before the absence, he did not report the absence to the TPA within forty-eight hours as required by the policy. Alexander was also absent from December 9, 2013 to December 11, 2013. Again, he notified Kellogg at least two hours in advance, but did not report the absences to the TPA within forty-eight hours. The TPA denied FMLA coverage for the unreported absences. After Alexander accumulated additional unexcused absences, he was terminated under Kellogg’s attendance policy.

Alexander sued Kellogg for interference and retaliation under the FMLA and retaliation under the Tennessee Workers’ Compensation Act. The lower court dismissed the claims, and the 6th Circuit Court of Appeals affirmed that decision, relying upon FMLA regulation 29 C.F.R. § 825.302(d) that authorizes employers to deny FMLA leave for failure to comply with internal notice requirements – absent unusual circumstances, which were not present here.

We’ve blogged about this topic before, and because ReedGroup is a TPA, we are glad to see the courts exercising consistency on this issue that is near and dear to us and our clients. Employers who use third party FMLA administrators like ReedGroup may require an employee to follow specified reporting procedures. Using a TPA can, in many cases, streamline the FMLA process, both for management and compliance concerns. At least in this case, the court clearly held: The employer and TPA can be right too!

Lori Welty

Lori Welty

Lori Welty, Esq. is a Compliance Attorney at Reed Group. Ms. Welty tracks and analyzes pending legislation and bills relating to leave of absence law in local municipalities, the 50 states, and the United States Congress. She provides expertise in all areas of state and federal leave law, including Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and their state law equivalents as well as disability and family leave benefits. Ms. Welty is an ongoing author of ReedGroup’s LeaveAdvisor online reference tool. She was the lead researcher and co-authored ReedGroup’s white papers regarding accommodations for pregnant employees, and paid sick leave laws