The exercise of sound judgment and the uniform, mechanical application of employment policies are not always synonymous. Every FMLA-covered employer in Texas, Mississippi and Louisiana should be interested in the Fifth Circuit’s most recent FMLA case resulting from an employer’s uniform application of its internal FMLA reporting policy. In Saenz v. Harlington Medical Center, the Court decided, what it characterized as a “close question,” that an employee does not necessarily have to comply with an employer’s internally created, heighted notice provision to maintain FMLA protection and that in some cases the employee need only comply with the FMLA’s more relaxed notice requirements. 

The plaintiff in Saenz, suffered from partial complex epileptic seizures that caused her to lose consciousness and become unable to perform her job. This normally incapacitated her for two days at time. Saenz requested and was granted intermittent FMLA leave for this seizure condition. Her employer, Harlingen Medical Center (“Harlingen”) had a policy that required employees to contact its FMLA administrator not later than two days after each leave period pursuant to the intermittent leave request. Under Harlingen’s policy, failure to provide the required notice could lead to a loss of FMLA protection. In the following six months, Saenz used intermittent FMLA leave eleven times and provided the required notice each time.

Thereafter, Saenz began suffering from depression and bipolar disorder that caused hallucination and disorientation. She was admitted the hospital and later committed to a behavioral center for three days of evaluation. Saenz’s mother contacted her daughter’s supervisor to advise of the symptoms and that Saenz would not be reporting to work.   While at the emergency room (in the same hospital where she normally worked), another Harlingen supervisor personally visited Saenz and observed some of her treatment. In the nine days during which she was incapacitated, Saenz was hospitalized, placed under a judicially created guardianship and eventually released into her mother’s care.

Ten days after first becoming incapacitated, Saenz called Harlingen’s FMLA administrator to advise of her depression/bipolar diagnoses and to discuss the five work absences she suffered as a result of her condition. She also requested approval for intermittent FMLA for these new conditions. Eight days later, Saenz received two letters. The first was from the FMLA administrator advising her that her intermittent FMLA leave request was being processed. The second letter was from Harlingen advising her that her employment was being terminated for excessive absenteeism. The termination letter expressly referenced her failure to comply with the two-day call-in policy. 

Saenz sued Harlingen for violations of the FMLA. The trial court dismissed the case holding that that factual issues existed as to whether the employer could rely on its heightened notice provision, namely, the employer’s actual notice of the severity of Saenz’s condition and the lack of evidence that Saenz affirmatively refused to comply with the company’s heightened noticed provisions. The court of appeals also found that fact issues existed as to whether Saenz gave sufficient notice of her need for leave as soon as practicable as required by the FMLA because the evidence showed that her mother told two supervisors of her hallucinations; at least one supervisor visited her in the hospital emergency room and observed Saenz’s treatment; and her mother stayed in constant contact with the employer as to the status of Saenz’s treatment. Based on these facts and this evidentiary record, the court of appeals remanded the case to the trial court for further proceedings.