Last month, there were two developments with the Family and Medical Leave Act highlighting the strictness of deadlines. In the first, the Department of Labor issued an opinion letter on March 14 which confirmed that employers must ordinarily provide written notice designating FMLA leave within five days of learning enough information that the leave qualifies under the FMLA even if the employee would prefer to delay the designation or is utilizing a paid leave policy. Employers may also not designate more than twelve weeks of leave as covered by the FMLA even if the employer provides more generous paid leave policies. Second, the Sixth Circuit affirmed an employer’s summary judgment after terminating the plaintiff for poor attendance when he called off late even on days when he was requesting intermittent FMLA leave. Njaim v. FCA US LLC., No. 18-3831 (3-19-19).
According to the Court’s opinion, the employer’s call off policy required employees to call off work at least 30 minutes before their shift. The plaintiff was suffering from mental health and substance abuse issues. Prior to requesting FMLA leave to obtain inpatient treatment, he had incurred several attendance points for failing to call off at least 30 minutes in advance. Upon and after returning from treatment, he again failed to show up or call of work at least 30 minutes in advance (even when taking time off because of FMLA covered mental health conditions). Accordingly, he has assessed with more points and ultimately terminated.
The Court found that the employee could not show that his absences on those days were covered by the FMLA because he failed to comply with the employer’s attendance policy. On one day, he failed to report to work on time and on the other he only called off ten minutes prior to his shift, in violation of company policy. “[A]n employee cannot “satisfy the first element of a prima facie FMLA case” when he does not follow the employer’s leave policies. Alexander v. Kellogg USA, Inc., 674 F. App’x 496, 501 (6th Cir. 2017).
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 be changed or 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.
