According to the Court’s opinion, the employer’s policy:
requires an employee to report any absence and the reason for it within a half-hour of the employee's scheduled start time and states that failure to report an absence may result in disciplinary action up to and including termination. Under the absenteeism policy, an employee with seven absences in a 12- month period is placed on "absence probation," during which the employee may have only one absence. More than one absence during the absence probation subjects an employee to termination.
The plaintiff had been placed on attendance probation on June 24 until December 5 for reasons unrelated to an FMLA leave he had taken the prior year. Nonetheless, the employer did not count against his probation his absences as excused by his physician for his depression or for an asthma attack which he admitted was not covered by FMLA.
On the last day of his probation, the plaintiff failed to report to or call off work within 30 minutes of the beginning of his shift. His supervisor claimed that she left him a voice mail near the end of the day terminating his employment for violating the terms of his probation. According to the plaintiff, he awoke from a blackout in the late afternoon, realized he needed immediate medical attention and when he began to call his supervisor while driving to the doctor, he checked his voice mail and learned he had already been fired. At this point, he claimed that he began to have a nervous breakdown and drove to his mother’s home instead of his physician. His mother then telephoned the supervisor that evening and attempted to explain the situation and how her son would probably be hospitalized. The plaintiff himself called his supervisor and human resources first thing in the morning and explained the same. Nonetheless, the employer refused to reconsider his termination.
While the Court agreed that the plaintiff’s FMLA rights had not been interfered with before December 5, it found a factual dispute as to whether he was entitled to new, unforeseeable FMLA leave beginning on December 5 even though he failed to call off work during his shift that day. The Court agreed that the plaintiff’s earlier FMLA certification only covered “treatment” and “recovery from treatment” and did not encompass the December 5 absence because he had not received any treatment that day. However, to the extent that his need for leave on December 5 was unforeseeable, the plaintiff was only required by both the earlier and current FMLA regulations to give notice of his need for leave “as soon as practicable.” This could be two days, or less, or more depending on the particular factual circumstances of the situation.
The employer argued that the plaintiff had admitted that the depressive episode began on November 30 and thus, plaintiff was on notice days earlier that he might need FMLA leave. However, the court found a reasonable jury could conclude that the plaintiff did not require time off work until he blacked out during the evening of December 4, and thus, he notified his employer as soon as practicable under the circumstances. In reaching this decision, the Court found it relevant that the employer summarily terminated the employee by voice mail and how this notice of his termination adversely affected his mental health, preventing him from calling his employer any earlier in the day under the circumstances.
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.
