On March 19, 2024, the U.S. Court of Appeals for the Fifth Circuit, in Cerda v. Blue Cube Operations, LLC, affirmed a district court's grant of summary judgment for an employer, Blue Cube Operations, LLC.

A long-term, FMLA-eligible employee, Elizabeth Cerda, told her supervisor she had a plan to take care of her sick father during her lunch breaks, but did not ask for, or say she needed, any additional time other than her half-hour break.

Her supervisor suggested she contact human resources to inquire about FMLA, and the employee told human resources she might explore "possibly getting FMLA", but never requested the required paperwork. The employee was aware of the internal procedure for requesting FMLA leave, which she had previously taken.

Cerda's coworkers complained about her frequent long lunches. Blue Cube investigated, and learned that Cerda was not accurately recording the length of her lunch breaks and as a result had been paid wages for at least ninety-nine hours of time that she had actually spent on extended lunch breaks rather than at work.

During the investigation, the employer required Cerda to use personal sick days for absences when she was exposed to COVID-19. In response, Cerda threatened to come to work to infect coworkers if she ever contracted the virus in the future.

Blue Cube terminated Cerda's employment because she received wages for ninety-nine hours she didn't work, and because of her threat to expose her coworkers to COVID-19.

Cerda sued her former employer in the U.S. District Court for the Southern District of Texas, alleging FMLA interference and retaliation, among other claims. The district court granted summary judgment to Blue Cube on all claims.

Cerda appealed. The Fifth Circuit found Cerda failed to provide evidence that she gave the employer adequate notice of her intent to take FMLA leave, so it dismissed the FMLA interference claim. In addition, the retaliation claim was dismissed because she never engaged in a protected activity because she never invoked the employer's internal procedures to seek FMLA leave.

In rejecting all of Cerda's appeal, the Court found the employer had legitimate nondiscriminatory reasons for terminating her employment – the wage discrepancy and the threats.

Commentary

The employer had internal procedures for requesting FMLA leave, which the employee knew about (having used those procedures to request, and be granted, FMLA leave previously) and which the employee did not pursue, despite her supervisor's encouragement.

Instead, she chose to be dishonest about the length of her lunch hours, and take wages she did not earn.

FMLA administration can be a challenge, even when an employee cooperates with internal procedures. Here are some things to keep in mind that can help employers:

• Don't allow an employee to abuse FMLA leave. Many FMLA administrators have seen public social media screenshots – usually taken by an employee's peers – showing the employee on FMLA leave participating in activities that appear to be inconsistent with the need for FMLA leave. Inform those in your organization who arrange for investigations. Allowing that behavior to go unquestioned can seriously impact morale and encourage abuse by others.
• If you suspect misuse, you can request recertification, specifically outlining the reasons why.  
• Don't guess at what you see on medical certification. If there is illegible information, or an open-ended end date from a healthcare provider on the medical certification, send Form WH-382 (notice of designation) and check the "additional information needed" box. Inform the employee in writing what the deficiencies are and give them at least a week to get them corrected.
• An employee taking predictable reduced-schedule/intermittent leave can be moved to another position that better accommodates the reduced hours. The job need not have equivalent duties, but the employee should receive the same pay and benefits. And, even if the employee is working part-time by virtue of intermittent leave, they retain their eligibility for health insurance.
  
  If an employee has unpredictable intermittent leave, this option does not apply.

Always work with your legal counsel when managing FMLA leave.