In March 2024, a Fifth Circuit ruling affirmed a grant of summary judgment for the employer by the Southern District Court of Texas. In Cerda v. Blue Cube, the plaintiff alleged that she was terminated for exercising her rights under the Family and Medical Leave Act of 1993 (FMLA). This case is often cited for providing valuable guidance to employers about what constitutes adequate notice of an intention to take FMLA leave. On the one hand, the decision seems to stand for the proposition that employees may not steal time, curse at or threaten co-workers under the guise of law. But on the other hand, this is a tale of an employee pushed, beyond her limits, by the demands of caring for an aging family member. It is a complicated story of what might once have been a cooperative employment relationship gone sour. The worker lost her job. The employer lost a long-term employee. How did this go so wrong?
The FMLA has been around for a long time now – long enough, one might think, for most of the administrative kinks to be worked out. The intermittent leave provisions, however, have remained an administrative headache for HR Management and employees.
Employee Rights Under the FMLA in Texas – FMLA Intermittent Leave
The FMLA allows eligible employees of covered employers to take unpaid, job-protected family and medical leave, with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to take up to 12 work weeks of FMLA family or medical leave in a 12-month period for specified conditions.
Since its enactment in 1993, administrative practices have been developed to regularize how HR management deals with the law. Nonetheless, the provisions of the law that permit an employee to take shorter, intermittent periods of leave where appropriate remain a headache for HR management. And that, quite frankly, is the way that family and medical emergencies often happen.
Call Kilgore & Kilgore for Questions About FMLA Violations
Our FMLA leave legal specialists understand FMLA requirements. Click this link to learn more about our Texas employment law practices FMLA Best Practices. To speak with one of our Texas employment lawyers, reach out to us at Contact Kilgore & Kilgore or call us at (214) 969-9099.
FMLA Workplace Leave Policies and Texas Employment Law
Elizabeth Cerda worked as a Cell Services Operator at Blue Cube Operations in Freeport, Texas from 2006 until 2020. In December 2016, she took workers’ compensation leave after sustaining an on-the-job injury to her foot. In 2017, Cerda took FMLA leave while recovering from rotator cuff surgery. She exhausted all 12 weeks of FMLA-protected leave in 2018. She was out on leave for approximately 18 months, though Blue Cube allowed her to return to her employment in December 2018.
Family Caregiving and FMLA Intermittent Leave
Upon her return, Cerda informed her supervisor that her father had health issues and said that she “was going to make more of an effort to go on [her] lunch break to see [her father] to make sure he had his medicines and something to eat . . . to hold him down until [she] got off work.” In January 2019, Cerda’s mother, who had been her father’s primary caregiver, died. Cerda’s father suffered from a variety of conditions, including dementia, which affected his ability to care for himself. Her other family was not local.
Cerda’s co-workers, meanwhile, began to complain that she was missing shifts. She was also taking lunch breaks far longer than the allotted 30 minutes. Cerda took time off when she was exposed to COVID-19. She was required to code the days as personal sick days. The facts are in dispute, but when she became angry, she allegedly said that “she would just come to work and get all these m-f sick.” At the same time, she alleged instances of sexual discrimination and harassment. Cerda was fired in April 2020, allegedly for time theft and threats to co-workers. Cerda sued. The District Court granted the employer’s motion for summary judgment and the Fifth Circuit ruling affirmed.
What Constitutes Adequate Notice of an Intention to Take FMLA Intermittent Leave?
The Fifth Circuit noted that, although Cerda informed her supervisor of her plan to care for her ailing father during lunch breaks, she did not indicate a need for additional time outside the half-hour lunch period. She also informed a human resources employee that she might explore “possibly getting FMLA,” but she never requested FMLA paperwork. Cerda did not have to say that she wanted FMLA leave, but she did have to request time off work. The bottom line was that the actions she took were insufficient to put her employer on notice that she intended to take FMLA leave.
FMLA Best Practices – Administrative Practices – FMLA Intermittent Leave Documentation
Going forward, a best practice in this situation might have been to train supervisors to properly document conversations with employees that are related to the employee’s health conditions or potential absences to care for family members due to their health conditions. Employers should train supervisors to notify HR and upper management any time supervisors recommend workers inquire about eligibility for a leave of absence.
FMLA Intermittent Leave Provisions and Leave Notice Requirements
FMLA-eligible employees are entitled to take leave on an intermittent or reduced-schedule basis to, for example:
- take care of the employee’s own serious health condition;
- care for a spouse, parent, son, or daughter with a serious health condition;
- for a qualifying exigency; or
- to care for a covered service member with qualifying exigencies.
Leave Notice Requirements for FMLA Intermittent Leave
Had Cerda’s notice been adequate, it is plausible that caring for her elderly father for an hour per day might have qualified. An intermittent leave request raises a host of other issues, however. Among these are:
- the need to distinguish between an intermittent leave – separate blocks of time due to a single qualifying reason – and a more permanent reduced schedule. The latter is a change in the employee’s schedule for a period of time, normally from full-time to part-time.
- reinstatement rights. An employee on FMLA leave has the right to be reinstated to a pre-leave status. An employee who switches from full to part-time might not.
- the administrative burden of keeping track of time taken on intermittent leave. An employer may not deduct time during which a worker would not normally be scheduled to work.
- how to prevent intermittent leave abuse.
Our Employment Lawyers May Be Able to Help with the FMLA Intermittent Leave Puzzle
When it was enacted 30 years ago, FMLA was hailed as a forward-looking way to address the substantial and growing needs of a changing workforce. Truthfully, women were a major factor in the workplace and had been juggling the demands of work and caregiving long before 1993. The recognition was better late than never.
Today, however, the national conversation is shifting toward the possibility of Medicare expansion to cover home health care. It might have made a difference for both Elizabeth Cerda and Blue Cube.
Regardless of the practical solutions to the conundrum facing both employers and workers, our Texas employment law attorneys may be able to help. Reach out to Kilgore & Kilgore for a free review of the facts of your employment challenges. Click here to get the conversation started contact Kilgore & Kilgore. We look forward to hearing from you.