IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30050
JUNE MANUEL,
Plaintiff-Appellant,
versus
WESTLAKE POLYMERS CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(October 3, 1995)
Before KING, HIGGINBOTHAM, and PARKER, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
June Manual appeals a summary judgment in favor of Westlake
Polymers Corporation. The district court held that Manuel did not
satisfy the notice requirements of the Family and Medical Leave Act
of 1993, 29 U.S.C. § 2601 et seq., because she did not expressly
invoke the statute's protection when she notified her employer of
her need for leave. We reverse and remand.
I.
June Manuel began working for Westlake Polymers Corporation in
July 1986. Manuel missed a substantial number of days of work each
year. In 1987, for example, she was absent seventeen days. As a
result, Westlake's supervisors advised Manuel that her employment
would be in jeopardy if her attendance did not improve. Despite
the warning, she missed forty-nine days in 1988 and thirty days in
1990. In June, 1991, Bryan Taylor, Westlake's Human Resources
Coordinator, informed Manuel that her attendance record was
unacceptable.
In 1992 Westlake established a "no fault" employment policy
designed to ensure that its employees met reasonable attendance
standards. Under the terms of the policy, every absence was
counted regardless of the cause of the absence. The policy
established a four-step system of progressive warnings and
disciplinary measures calculated to apprise employees of attendance
problems. Step one was an oral reprimand; step two was a written
warning; step three was a one-week suspension and final warning;
and step four was termination.
Manuel was warned in February, July, and September of 1992,
the last of which informed her that "failure to immediately correct
this problem will result in more severe disciplinary action, up to
and including termination." Manuel continued to miss days of work.
On December 30, 1992, Westlake sent Manuel a formal warning letter
notifying her that, since the last warning three months earlier,
she had missed approximately 14 days of work. This letter again
advised her that her continued absenteeism could result in
suspension or termination.
On October 6, 1993, two months after the FMLA went into
effect, Manuel visited Dr. Frank Robbins seeking treatment for an
ingrown toenail. Dr. Robbins advised her that her toenail needed
to be removed and that, if the procedure were performed on a
2
Friday, she could return to work the following Monday. Manuel
notified her supervisor, Sheldon Cooley, who immediately gave her
permission to take Friday, October 8th off from work.
Dr. Robbins performed the procedure that Friday, but
complications developed. Due to infection and swelling of her toe,
Manuel was unable to walk without crutches. On the following
Monday, Manuel contacted Cooley and notified him that she could not
return to work due to her toe. Keeping in constant contact with
Westlake, she remained absent from work for over a month. During
this time, Manuel did not mention the FMLA, nor did she expressly
invoke its protection. In fact, Manuel did not know the Act
existed.
On November 29, 1993 at the request of Westlake, Manuel saw
Dr. White, the Westlake company physician. After examining Manuel,
Dr. White pronounced her able to return to work and advised her to
report for work. The following day she returned to work, but
Westlake promptly suspended her for four days and issued its "Final
Warning/Suspension Letter for Unsatisfactory Attendance." The
letter stated that "unless you are able to and actually do report
for work regularly and as scheduled, your employment will be
terminated."
Less than two months later, on January 25, 1994, Manuel became
ill while at work and went home. She returned to work after three
days, but this absence was one too many. On February 7, Westlake
fired her because of her persistent attendance problem.
3
On April 14, 1994, Manuel sued Westlake in the United States
District Court for the Western District of Louisiana, alleging that
Westlake violated the Family and Medical Leave Act of 1993, 29
U.S.C. § 2601 et seq., by counting her October-November, 1993
absence as an additional step in its "no fault" policy. After
conducting limited discovery, both Manuel and Westlake moved for
summary judgment.
The district court granted Westlake's motion for summary
judgment. The court found that Manuel notified her supervisor of
the need to miss work for medical reasons but did not expressly
invoke the FMLA or its protection when requesting leave. Examining
the Department of Labor's interim regulations, the court noted that
the regulations specified different notice requirements depending
upon the foreseeability of the need for leave. Although in the
case of foreseeable leave the employee "need not express certain
rights under the FMLA or even mention the FMLA," 29 C.F.R.
§ 825.302(b), the regulation governing unforeseeable leave omitted
this language and required an employee to give notice to her
employer "of the need for the FMLA leave." 29 C.F.R. § 825.303(a).
Noting that Manuel's extended absence in October-November,
1993 was unforeseeable, the district court determined that her
ingrown toenail was not such "an obviously serious injury, such as
a broken leg, cancer, or heart attack, which would trigger an
employer inquiry into whether the employee intended to use FMLA
leave." The court concluded that when the need for leave is
unforeseeable "and when the serious medical condition alleged is
4
not the type which would normally require an employer to inquire
whether FMLA leave is needed, it is not inconvenient nor unduly
burdensome to require an employee in some manner to refer, or
attempt to refer, to the Act." Because Manuel did not make such an
attempt, the court held that Manuel's notice to Westlake was
insufficient to trigger the protection of the FMLA and granted
Westlake's motion for summary judgment.
II.
The FMLA provides eligible employees such as June Manuel
twelve weeks of unpaid leave each year for "a serious health
condition that makes the employee unable to perform the functions
of the position of such employee." 29 U.S.C. § 2612(a)(1)(D).
Where that leave is foreseeable, the Act requires that the
employee:
(B) shall provide the employer with not less than 30
days' notice, before the date the leave is to
begin, of the employee's intention to take leave
under such subparagraph, except that if the date of
the treatment requires leave to begin in less than
30 days, the employee shall provide such notice as
is practicable.
29 U.S.C. § 2612(e)(2)(B). Significantly, the Act does not specify
the form of notice required for foreseeable leave, nor does it
mention any notice requirement for unforeseeable leave.
Similarly, the legislative history of the FMLA does not
mention the content of the notice that an employee must give. The
Senate Report accompanying the Act explains that 30-day advance
notice is required for foreseeable leave but that "[e]mployees who
face emergency medical conditions or unforeseen changes will not be
5
precluded from taking leave if they are unable to give 30 days'
advance notice." S. Rep. No. 3, 103rd Cong., 1st Sess. 25 (1993),
reprinted in 1993 U.S.C.C.A.N. 3, 27. The House Report is more
vague, stating only that "30-day advance notice is not required in
cases of medical emergency or other unforeseen events." H.R. Rep.
No. 8, 103rd Cong., 1st Sess., pt. 1, at 38 (1993). However,
neither report mentions whether an employee must expressly invoke
the FMLA when taking leave.
More helpfully, the Secretary of Labor, pursuant to his
statutory authority,1 promulgated interim regulations specifying
what notice an employee must give. 29 C.F.R. §§ 825.302, 825.303.2
The interim regulations provide that, when the need for leave is
foreseeable, the employee must give "at least verbal notice
sufficient to make the employer aware that the employee needs FMLA-
qualifying leave, and the anticipated timing and duration of the
leave." 29 C.F.R. § 825.302(c). Significantly, the regulation
continues, providing that an employee "need not expressly assert
rights under the FMLA or even mention the FMLA, but may only state
that leave is needed for an expected birth or adoption, for
example." Id.
When the need for leave is unforeseeable, however, the interim
regulations contain no disclaimer of notice expressly invoking the
1
29 U.S.C. § 2654.
2
The Secretary released final regulations effective April
6, 1995. See 60 Fed. Reg. 2181 (Jan. 6, 1995). However, the
interim regulations govern this dispute since Westlake's decision
to suspend Manuel in December 1993 occurred prior to the release of
the final regulations.
6
FMLA's protection. The regulation requires that an employee
"should give notice to the employer of the need for FMLA leave as
soon as practicable under the facts and circumstances of the
particular case." 29 C.F.R. § 825.303(a). Westlake interprets
this difference in regulatory language as denoting that, when the
need for leave is unforeseeable, an employee must mention the FMLA
in order to provide sufficient notice to the employer. We
disagree.
First, the regulation governing notice for unforeseeable leave
does not, on its face, require express invocation of the FMLA.
Rather, the regulation requires "notice of the need for FMLA
leave." The reference to "FMLA leave" is ambiguous at best; it
does not compel the conclusion that an employee seeking "FMLA
leave" must mention the statute by name. The district court itself
doubted that the phrase "FMLA leave" denotes a substantive
requirement that an employee mention the FMLA when requesting
leave.
Second, the absence of the disclaimer does not impose a
requirement that the leave be expressly invoked by employees who
could not foresee their need for leave. To the contrary, other
provisions in the interim regulations suggest that the Secretary
did not intend employees, including those who could not foresee
their need for FMLA leave, to expressly invoke the FMLA to satisfy
their notice obligation. § 825.208(a)(1) iterates:
As noted in section 825.302(c), an employee giving notice
of the need for unpaid FMLA leave does not need to
expressly assert rights under the Act or even mention the
FMLA to meet their [sic] obligation to provide notice,
7
though they would need to state a qualifying reason for
the needed leave.
Moreover, this regulation provides that "[i]n all circumstances, it
is the employer's responsibility to designate leave, paid or
unpaid, as FMLA-qualifying, based on information provided by the
employee." 29 C.F.R. § 825.208(a)(2). If the employer does not
have sufficient information about the employee's reason for taking
leave, "the employer should inquire further to ascertain whether
the paid leave is potentially FMLA-qualifying." Id. To require
the employee to designate her leave as pursuant to the FMLA would
render these provisions meaningless, if not directly contradict
them.
Any doubt as to the Secretary's intention is resolved by the
final regulations, which confirm that an employee seeking leave for
unforeseen medical treatment need not expressly invoke the Act's
protection. Resolving the ambiguity lying at the heart of this
case, the final regulation governing notice requirements for
unforeseeable leave incorporates the disclaimer of express notice.
29 C.F.R. § 825.303(b) now provides that "[t]he employee need not
expressly assert rights under the FMLA or even mention the FMLA,
but may only state that leave is needed." 60 Fed. Reg. 2181, 2258
(1995).
Westlake argues that this change in regulatory language
confirmed that the interim regulation did require express mention
of the FMLA. We disagree. The Department of Labor's explanation
of the amendments to the interim regulations does not even discuss
its addition. See 60 Fed. Reg. 2221. This treatment suggests that
8
the Department of Labor was attempting to clarify the law as it
existed under the interim regulation, not to remove a pre-existing
duty to mention the FMLA when requesting leave.
Westlake's argument ultimately rests on a perceived regulatory
error. It offers no practical reason for its proposed reading.
Westlake does not explain why the Secretary would impose such a
stringent requirement upon employees who cannot foresee their need
for leave but not upon employees who can foresee their need for
leave. Congress added the notice requirement to assist employers
plan around their employees' absences. See S. Rep. No. 3 at 2,
reprinted in 1993 U.S.C.C.A.N. 3, 4; 137 Cong. Rec. H9727
(statement of Rep. Roukema) (noting that employee must give notice
"so as not to unduly disrupt the operations of the employer").
That goal is not advanced by requiring employees to expressly
mention the FMLA by name: an absent employee is an absent
employee.
Westlake argues that requiring express mention of the FMLA
furthers the employers' ability to invoke their rights under the
Act. We disagree. The FMLA grants no rights to employers that
they did not possess prior to the Act. Nor do we believe that
Congress added the notice provision to apprise employers of their
right to pursue their statutory safeguards.
Meanwhile, requiring employees unable to foresee their need
for leave to expressly invoke the FMLA's protection would
significantly burden the employees. Employees often cannot foresee
their need for medical or family leave. S. Rep. No. 3 at 25,
9
reprinted in 1993 U.S.C.C.A.N. at 27. Even more than employees who
can foresee their need for leave, those who cannot foresee such
need are ill-equipped to identify the statutory source of their
right. We do not believe that Congress, in enacting the FMLA,
intended to impose such an onerous requirement on employees,
particularly where employers receive no benefit from it.
We are persuaded that the interim regulations do not require
employees to expressly mention the FMLA when notifying their
employer of their need for FMLA leave.
B.
Westlake argues that if the regulations permit employees to
invoke the FMLA's protection without expressly mentioning the Act,
they are contrary to the FMLA. We disagree. Where a statute is
silent or ambiguous, we limit our inquiry to "whether the agency's
answer is based on a permissible construction of the statute."
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).
Administrative regulations promulgated in response to express
delegations of authority, like the one at issue here, "are given
controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute." Id. at 844, 104 S.Ct. at
2782; see also 1A Sutherland Stat. Const. § 31.06 (5th ed.) (noting
"regulations are generally entitled to great deference").
Neither the statutory language nor the Act's legislative
history disclose congressional will regarding the content of the
required notice. We are unable to say that the regulations
10
challenged here are so patently at odds with the legislative scheme
as to render them invalid. To the contrary, their disclaimer of
any requirement that notice must expressly invoke the FMLA is a
reasonable interpretation of the statutory scheme created by
Congress.
Westlake points to the "express mandate" of the statute
requiring notice of the employee's intention "to take leave under
such subparagraph." 29 U.S.C. § 2612(e)(2)(B). We reject the
contention that the FMLA requires employees not only to invoke the
statute's protection by name, but to refer to the specific
subparagraph of the FMLA under which they claim protection. These
are workers, not lawyers. Accord D'Alia v. Allied-Signal Corp. 614
A.2d 1355, 1359 (N.J. Sup. Ct. App. Div. 1992) (holding that
"rights and benefits granted by [analogous state law] should not
depend on the sophistication of the employee").
Congress enacted the FMLA in order "to entitle employees to
take reasonable leave for medical purposes." 29 U.S.C.
§ 2601(b)(2) (emphasis added). Its legislative history discloses
that it "is based on the same principle as the child labor laws,
the minimum wage, Social Security, the safety and health laws, the
pension and welfare benefit laws, and other labor laws that
establish minimum standards for employment." S. Rep. No. 3 at 4,
reprinted in 1993 U.S.C.C.A.N. 3, 6-7. Significantly, none of
these other federal labor laws granting benefits to employees
requires those employees to refer to the specific statute, much
less the specific statutory subsection, in order to avail
11
themselves of its benefits. We do not believe Congress intended to
depart from this practice and require employees to consult
attorneys before notifying their employer of their need for FMLA
leave.
Furthermore, contrary to Westlake's suggestion, permitting
employees to avail themselves of the FMLA's protection without
expressly invoking the statute does not leave employers such as
Westlake without protection from abuse of the Act's generous
provisions, nor does it require employers to engage in intrusive
inquiries to determine whether the FMLA applies. The Act permits
employers notified of an employee's intent to take leave due to a
serious health condition to require the employee to provide
certification from a physician. See 29 U.S.C. § 2613(a). If the
employer has reason to doubt the validity of the certification, it
may ask for a second opinion from a different physician. 29 U.S.C.
§ 2613(c). If the second opinion differs from the first, the
employer may require a third opinion. 29 U.S.C. § 2613(d).
Moreover, the employer may require recertification on a reasonable,
on-going basis. 29 U.S.C. § 2613(e). In short, the FMLA provides
safeguards from delinquent employees, but express notice by an
employee that she takes leave pursuant to the FMLA is not one of
those safeguards.
We hold that the Family and Medical Leave Act of 1993 does not
require an employee to invoke the language of the statute to gain
its protection when notifying her employer of her need for leave
for a serious health condition.
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C.
We decline to announce any categorical rules for the content
of the notice by an employee. When an employee cannot give 30-days
advance notice of the need for FMLA leave, the FMLA requires notice
"as is practicable." 29 U.S.C. § 2612(e)(2)(B). What is
practicable, both in terms of the timing of the notice and its
content, will depend upon the facts and circumstances of each
individual case. The critical question is whether the information
imparted to the employer is sufficient to reasonably apprise it of
the employee's request to take time off for a serious health
condition. Accord D'Alia, 614 A.2d at 1359.
III.
Congress, in enacting the FMLA, did not intend employees like
June Manuel to become conversant with the legal intricacies of the
Act. The district court erred by requiring such knowledge. We
leave to the district court the question of whether Manuel gave
Westlake sufficient notice under the FMLA.3
REVERSED and REMANDED.
3
We express no opinion regarding whether the complications
arising from Manuel's surgery for her ingrown toenail constitute a
"serious health condition."
13