Case: May employees use FB Messenger to provide notice of the need for leave?

Emergency surgery and recovery

In June 2019, Kasey, an employee, underwent an emergency appendectomy. While at the hospital, Kasey sent his group leader, Gary, a FB message notifying him of the situation. Kasey and Gary had used FB in the past regarding absences. As before, Gary and Kasey corresponded on FB over several days after Kasey’s appendectomy surgery.

Kasey missed two weeks of work to recover and dropped off a doctor’s note at work. Right before Kasey was to return to work, however, his surgical wound became infected, and he was readmitted to the hospital. Again, he kept Gary apprised of the situation via FB. Kasey also asked for human resources’ fax number to send in paperwork extending his leave period.

Kasey was cleared for work on August 12th, and told Gary via FB. Again, he brought a copy of his doctor’s note to work.

On Friday, after four days of work, Kasey felt pain where the infection had been He FB messaged Gary, and was told to do what he needed to do. The following Monday, Kasey was hospitalized again, but kept Gary apprised via FB.

Communication breakdown

At this point, things went sideways. Gary reported Kasey’s absence to human resources, but couldn’t recall whether he mentioned Kasey’s hospital stay.

Scott, the company’s HR director, terminated Kasey for job abandonment. Per company policy, employees were to notify their leader of an absence or being late via a call-in line at least 30 minutes before their shift begins. If an employee missed three consecutive shifts without calling in, the company considered the employee to have abandoned the job and terminated.

When Kasey returned to work on September 3rd with a doctor’s note covering his latest absence, he learned of the termination, and he sued.

The case

Part of the case revolved around whether Kasey’s use of FB Messenger followed the employer’s usual and customary call-in policy. Kasey argued that it was because that’s how he had provided notice in the past.

The company countered that, because Kasey didn’t use the company’s call-in line for reporting absences, his FMLA claim failed, despite his history of communicating with Gary over FB Messenger.

The court found that the FMLA’s provision regarding “usual and customary” notice policies and procedures include any method that an employer has, by informal practice or course of dealing with the employee, regularly accepted, in addition with those in the employer’s written attendance policy. Because Gary had accepted Kasey’s FB messages to provide notice, that method became acceptable. Nothing in the FMLA limits the reach of “usual and customary” to a company’s written policy.

Roberts v. Gestamp West Virginia, LLC, Fourth Circuit Court of Appeals, No. 20-2202, 8/15/22.