Sixth Circuit Upholds Employer’s Call-Off Policy in FMLA Case

The Sixth Circuit addressed two FMLA cases this week.  In one case, a unanimous Court affirmed the employer’s summary judgment over the employee’s claim that the employer interfered with his FMLA leave when it fired him for failing to call off every day in accordance with the employer’s policy even though the employer arguably knew he was medically unable to work and was scheduled for surgery two days later.   White v. Dana Light Axel Mfg, Inc., No. 12-5835 (6^th Cir. 8-7-13).  In the other, a divided Court reversed the employer’s summary judgment where the Central Ohio employee alleged that she had been demoted in retaliation for exercising her FMLA rights because internal emails raised questions about the employer’s business justification for transferring her position and whether it was done to compel her to resign.  Crawford v. JP Morgan Chase& Co., No. 12-3698 (6^th Cir. 8-6-13).

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.

New FMLA Regulations Significantly Change Employee’s Notice Requirements; Calling in Sick and Ignoring Employer’s Policies No Longer Suffices.

As mentioned in the summaries from last week, the DOL issued new FMLA regulations last Monday which will become effective on January 16, 2009 and will require employers to modify their employment policies, practices employee handbooks. Employers should consult with an employment attorney to revise and/or review their FMLA policies and forms before the new FMLA rules become effective in January. In addition to the new rules mentioned at this site beginning at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

27. §825.302: Employee Notice Requirements. This rule has also been reorganized and contains a few significant changes. As before, employees must give notice of a need for FMLA at least 30 days in advance or as soon as practicable. When the employee fails to do so, “the employee shall explain the reasons shy such notice was not practicable upon a request form the employer.” The new regulations gives examples of when 30 days’ advance notice may not be possible. Notice “as soon as practicable” should typically be given on the same or next business day. The former two-day notice requirement has been deleted. As before, employees need only give verbal notice of a need for FMLA leave (including the anticipated timing and duration) and, for first time FMLA requests, need not mention the FMLA. However, “[w]hen an employee seeks leave due to a FMLA-qualifying reason, for which the employer has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for the leave or the need for FMLA leave.” Moreover, “[i]n all cases, the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee and obtain the necessary details for the leave to be taken. An employee’s [f]ailure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.”

“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.” This is a significant change from the current rule and notably would include requirements of written notice setting forth the reasons for the leave and the anticipated duration and to contact a specific person. “When 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” (unless the employer’s policy requires notice to be given more than 30 days in advance or as soon as practicable). “The Department recognizes that callin procedures are routinely enforced in the workplace and are critical to an employer’s ability to ensure appropriate staffing levels. Such procedures frequently specify both when and to whom an employee is required to report an absence. The Department believes that employers should be able to enforce non-discriminatory call-in procedures, except where an employer’s call-in procedures are more stringent than the timing for FMLA notice as set forth in § 825.302(a).”

28. §825.303 Employee notice of unforeseeable leave. The new rule is so substantially similar to the general rule (above) that I am a little surprised that a separate rule was deemed necessary. As a result, I will not repeat those changes here. As with the current rule, employees are expected to give notice as soon as practicable. However, it “generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” The former two-day standard has been deleted. As with the general rule (above), the employee need not mention the FMLA the first time leave is requested, but must do so going forward. “Calling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.”

29. §825.304: Employee failure to provide notice. The new rule reorganized and “clarified” the current requirements. For instance, FMLA leave may not be delayed or denied unless the employer has complied with the posting and handbook requirements (discussed yesterday). “If an employer does not waive the employee’s obligations under its internal leave rules and procedures for failure to follow its usual and customary notification rules, the employer may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave and the rules are not inconsistent with §825.303(a).”

I will continue to summarize additional significant changes in the new FMLA regulations throughout the week on this blog, including at New FMLA Regulations Change Process of Medical Certifications. Until then, eager beavers and insomniacs can read the 201 pages of single-spaced, 9-point font new rules and explanatory comment in full at http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf.

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.