Posted by Aric S. Bomsztyk | Dec 20, 2018 | 0 Comments

On November 29, 2018, the Court of Appeals of Washington, published Espindola v. Apple King LLC. This case held that an employee who is incapacitated due to a serious medical condition, such as pregnancy, has the right to take protected leave from work. This right persists even when an episode of incapacitation is unforeseeable. Should an employee invoke protected leave, including unforeseeable protected leave, an employer cannot use the employee's actions as a negative factor in a subsequent employment decision—even if the leave is contravention of the employer's company policy. The Court ruled in favor of the employee even though she did not comply with the company policy because the company policy was not compliant with FMLA/ WFLA.

The Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-2654; 29 C.F.R. pt. 825 was implemented by the federal government to address “inadequate job security for employees who have serious health conditions that prevent them from working temporary periods.” 29 U.S.C. § 2601(a)(4). The purposes of the FMLA include the need “to balance the demands of the workplace with the needs of families,” and “to entitle employees to take reasonable leave for medical reasons” including “the birth ... of a child.” 29 U.S.C. § 2601(b)(1), (2). Similarly, Washington's Family Leave Act (WFLA), chapter 49.78 RCW, states it is “in the public interest to provide reasonable leave for medical reasons.” RCW 49.78.010. 

The substantive right enjoyed by employees under the FMLA and WFLA is the ability to take 12 weeks' leave from work per year for protected health or family reasons without suffering negative employment consequences. 29 U.S.C. §§ 2612(a)(1), 2614(a); RCW 49.78.220, .280. To safeguard this right, both the FMLA and WFLA prohibit employers from discriminating and retaliating against employees who engage in protected conduct. A plaintiff claiming retaliation for the exercise of FMLA/WFLA rights need only prove: (1) he or she was absent from work for reasons covered by the FMLA/WFLA, (2) he or she suffered an adverse employment decision, and (3) the covered leave was a negative factor in the employer's adverse employment decision

To invoke the right to protected leave, an employee must provide adequate notice to his or her employer. 29 U.S.C. § 2612(e); RCW 49.78.250. There are three general components of adequate FMLA/WFLA notice: content, timing, and compliance with employer policy. 

With respect to content, an employee's notice must refer to a condition that qualifies for leave under the FMLA/WFLA. Pregnancy-related incapacitation is an explicitly covered condition. 29 C.F.R. § 825.115(b); RCW 49.78.020(16)(a)(ii)(B). Also covered is incapacitation due to a serious medical condition that “makes the employee unable to perform the functions” of the employee's job. 29 U.S.C. § 2612(a)(1)(D); 29 C.F.R. § 112(a)(4); RCW 49.78.220(1)(d).

An employee's responsibility with respect to timing of notice is somewhat flexible. In general, an employee must provide 30 days' advance notice of planned leave. 29 U.S.C. § 2612(e); 29 C.F.R. § 825.302(a); RCW 49.78.250. However, the FMLA/WFLA recognize that 30 days advance notice is not always possible. In such circumstances, an employee need only provide notice as soon as practicable. 29 U.S.C. § 2612(e); 29 C.F.R. § 825.302(a); RCW 49.78.250. When medical or family leave is unforeseeable, no advance notice is required. 29 C.F.R. §§ 825.303(a), .305(b);

An employee's notice obligations generally include compliance with an employer's internal notification procedures. 29 C.F.R. §§ 825.302(d), .303(c), .304. But there is an important limitation to an employer's ability to deny FMLA/WFLA leave based on noncompliance with company policy. When an employer's policy does not comport with FMLA/WFLA standards for invoking leave (such as the standards for invoking unforeseeable leave), an employee's right to protected leave cannot be denied based simply on noncompliance with the employer's policy. See 29 C.F.R. § 825.304(e) (“[T]he employer may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave and the rules are not inconsistent with § 825.303(a) [allowing for unforeseeable leave].”); see also 29 C.F.R. §§ 825.302(d), .303(c), .304(a). In circumstances where the employer's policy is insufficient, an employee's notice obligations are governed solely by the terms of the FMLA/WFLA.

Our firm represents employers and companies navigating the complex federal and state laws governing The Family and Medical Leave Act of 1993 (FMLA) and Washington's Family Leave Act (WFLA). We provide consultations, draft and review company policies and employment manuals and negotiate with federal and state authorities. Also, if need be, we litigate on behalf of employers in FMLA and WFLA disputes in federal courts, Washington courts and administrative hearings. Please contact our firm with any questions, we will provide a free consultation.  

About the Author

Aric S. Bomsztyk

Partner - Mr. Bomsztyks practice encompasses all aspects of small business representation including incorporation, financing, contract/lease review, negotiations, dispute resolution, and litigation. Mr. Bomsztyk represents a wide variety of business including internet startups, general con...


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