Facebook Messenger & The FMLA

August 30, 2022 - Pierce T. MacLennan
The Fourth Circuit Court of Appeals (which governs South Carolina) wrote in a recent case (called Roberts here) that an employee’s message to his supervisor over Facebook messenger might be enough to put the Company on notice of the need for FMLA leave. So, the Company in question may have violated the FMLA when it terminated the employee who didn’t return to work and didn’t follow the call-in procedures. A link to the decision can be found here.

To qualify for FMLA leave, an employee must provide the employer with notice that they need the leave. Importantly for HR, an employee does not need to use any magic words and does not have to come right out and say, “I need FMLA leave.” Rather, the employee is required to provide sufficient information such that the employer can reasonably determine that the employee may need FMLA leave.

Interestingly, the FMLA does allow employers to enforce usual and customary “call-in procedures” for work absences, including absences that may qualify for FMLA leave (absent unusual circumstances, such as an emergency situation). Most employers have handbook provisions requiring a certain form of notice and time of notice for absence.

In the Roberts case, the employer had a clear policy that employees should call a specific number to report an absence. The employer claimed that since this employee did not follow the procedure, it was not on notice of the potential FMLA absence and was justified in terminating him when he didn’t show up for work on consecutive days (job abandonment). The employee argued that he regularly exchanged Facebook messages with his supervisor, so those communications were a “usual and customary” way to communicate such an absence.

The Roberts court said whether the Facebook messages with his supervisor were a “usual and customary” way to communicate was a factual question for the jury. The case serves as a good reminder of all the FMLA leave request procedures and to be flexible with how an employee reports.

If you have questions about this topic or other employment law matters, please contact Perry or the HSB Employment Law practice team.