In White, the
employer had a policy requiring employees to call off every day that they were
absent from work:
Under the policy, each employee was responsible to personally
call in his own absences. Moreover, the policy expressly provided, “All
absences must be phoned into [the number provided] on a daily basis. Calls to
other numbers will not be acceptable.” Employees were clearly instructed, “Your
[sic] must call in each and every day [sic] of an absence before the start of
your shift.” Importantly, the policy explicitly stated, “If an individual fails
to report to work for two days and has not called in, that person is considered
to have voluntarily quit.”
Even though the plaintiff was absent from work every
day in October (and even though he dropped off at work his updated FMLA medical
certifications on his way to the hospital for his hernia surgery on October 7),
he did not call off work any day before October 9. He assumed that calling was unnecessary
because he had already informed his supervisor and HR about his medical
restrictions, hernia problems and upcoming surgery. On October 1, the employer notified him that
his most recent FMLA medical certification form was incomplete and he had until
October 7 to cure the deficiency. On
October 6, the employer notified him he was being terminated for failing to
call off every day for his absence that week and his record would reflect a
voluntary resignation. It offered to
reconsider if there were extenuating circumstances.
After receiving the termination letter, the plaintiff
began calling off every day and submitted information and an STD application
about his hernia surgery and his need to be off work for six weeks. The employer did not reconsider his
termination.
The Court noted that the FMLA regulations provide
that an employer may enforce its customary call-off procedures against
employees taking FMLA leave:
An employer may require an employee to comply with the
employer’s usual and customary notice and procedural requirements for
requesting leave, absent unusual circumstances. . . . An employee . . . may be required
by an employer’s policy to contact a specific individual. Unusual circumstances
would include situations such as when an employee is unable to comply with the
employer’s policy that requests for leave should be made by contacting a
specific number because on the day the employee needs to provide notice of his
or her need for FMLA leave there is no one to answer the call-in number and the
voice mail box is full. Where an employee does not comply with the
employer’s usual notice and procedural requirements, and no unusual
circumstances justify the failure to comply, FMLA-protected leave may be
delayed or denied. . . . 29 C.F.R. § 825.302(d) (emphasis added).
The Court also noted that the employee could not show “unusual
circumstances” that would justify his failure to call off every day because he
was physically able during his absence to visit his physician and drop off his
updated medical certification forms.
Earlier in the case, the Court spent a lot of time
discussing certain FMLA issues that had very little to do with the eventual
outcome of the case. The employee had perpetual attendance infractions related
to his failure, among other things, to submit complete medical certification
forms from his physicians to support his requests for FMLA leave. He suffered from a number of medical issues that
arose from a car accident many years earlier.
While he was being counseled about incomplete medical certification
forms from a prior absence (and given the opportunity to cure the flaws) in
September, he informed the HR Department and his supervisor that he might have
developed another hernia and was being evaluated for surgery. Despite being given one opportunity to cure
the flawed medical certifications, his resubmitted certification form was still
incomplete and he was sent home. When he
returned to work on September 30, the employer intended to terminate his
employment, but reconsidered after learning about the new hernia problem and
planned surgery. (The employer denied that he had been that clear, but it had
provided him with the STD application and received his doctor’s notes, etc.) He
submitted new FMLA certification forms for his hernia problem (including a
reference to upcoming surgery), a doctor’s note explaining his lifting
restrictions and was also given an STD application because he could not perform
any work with his lifting restriction.
NOTICE: This summary is
designed merely to inform and alert you of recent legal developments. It does
not constitute legal advice and does not apply to any particular situation
because different facts could lead to different results. Information here can
change or be amended without notice. Readers should not act upon this
information without legal advice. If you have any questions about anything you
have read, you should consult with or retain an employment attorney.
