January 28, 2021

When Policy & Practice Prevail

An employee requests intermittent leave under the Family and Medical Leave Act (FMLA). The request is approved.  The employer’s policy requires an employee to report any absence using the employer’s call-in service to report what type of leave will be used, “family sick time, FMLA, PTO, etc.” When this employee repeatedly fails to follow the call-in procedure, including to report FMLA-covered absences and after coaching and counseling, she is fired.

She sues the employer for a slew of claims under the FMLA (interference and retaliation), the Americans with Disabilities Act (discrimination, retaliation, and failure to provide reasonable accommodation), and a few state law claims. She loses, appeals and loses again. Why?

The court reminds us that, “An employee must comply with the employer’s requirements for requesting leave unless those requirements conflict with a substantive provision of the FMLA…An employer’s policy requiring an employee on approved FMLA leave to call in sick during work hours and report the absence does not conflict with the FMLA.” As for the ADA and state law claims, the court found the employer had a “legitimate and non-discriminatory reason” for firing the employee, e.g., failure to follow policy and procedure.

NOTE: The court references the policy that requires an employee to use the call-in procedure for any absence, not just FMLA-covered absences.  The result might have been different if the employer required a different process for reporting FMLA-covered absences.  Consider your policy and practice. Do you have different procedures for requesting and reporting FMLA v. non-FMLA absences or leave?  If so, talk to your company’s legal counsel to determine if you want to make any changes.

Want more tips for updating your employment policies and Employee Handbook? Join FiveL Company’s February 24th Webcast, “Employee Handbooks: Read ‘Em & Weep?!Click here for a program description and to register.