Can an Employer Grant FMLA Leave, but Also Discipline an Employee for Failing to Timely Report the Absence?

I’ve often wondered — in fact, even discussed with clients — whether an employer could safely approve an employee’s FMLA-related absence and discipline the employee because he failed to timely report the absence.

I’ve theorized that an employer could pull off both because the discipline punished the late call-in, not the FMLA leave.

But I’ve never had a case supporting my wild theory.

Till now.

Let me explain Daphne’s story.

Daphne was a flight attendant who suffered from a chronic vein issue that caused bad circulation, which led to bad swelling and a whole lot of pain. As a result, she sought intermittent FMLA leave when she had flare ups of her condition.

Year after year, Daphne would certify her FMLA leave and she’d take nearly all her leave. Like clockwork.

Then, two things happened:

1. After Daphne sought a new period of FMLA leave , the airlines recertified her medical condition. Despite ample time to return recertification, Daphne failed to do so, resulting in denial of her FMLA leave for one of her absences.
2. On still another occasion, Daphne sought intermittent FMLA leave for her condition. When reporting her absence, however, she failed to follow the employer’s call-in procedures requiring employees to report their need for leave at least three hours before a shift.  Despite her tardy call-in, she provided medical certification to support her need for FMLA leave.  As a result, the employer granted Daphne’s FMLA leave request, but disciplined her for failing to follow the three-hour call-in procedure.

Notably, the discipline issued for Daphne’s late call-in was a key component in her eventual termination. Daphne filed an FMLA lawsuit, which promptly was booted by the trial court.  Reed v. Delta Air Lines (pdf)

Insights for Employers

Daphne’s case is helpful to employers in multiple ways:

• It is yet another reminder that an employee can (and should) be disciplined when they fail to return medical certification (and recertification). Here, despite plenty of time to do so, Daphne failed to return certification supporting her absences. As a result, her FMLA leave was denied, resulting in discipline.  No brainer, but it’s heartening to see a court remain steadfast the principle that FMLA absences must be supported by medical certification.  When the employee fails to meet her obligation, the absence is not protected by FMLA.
• When an employee calls in an FMLA absence, but fails to follow the call-in procedures, the court here endorsed the employer’s right to designate the absence as FMLA leave, but also to discipline the employee for failing to timely report her absence. As the court noted, the discipline was issued for violating the call-in policy, not as a result of the FMLA leave itself.  Of course, we have to be careful in these situations to confirm that our employee did not have an unusual circumstance prohibiting a timely call-in, but if they cannot identify an emergency that did not allow them to call on time, this court green lights your discipline.
• Additionally, when an employee utilizes FMLA over a period of time, she know full well what the darn rules are for calling in an absence.  If you face an FMLA lawsuit from a serial FMLA user who suddenly claims amnesia regarding call-in rules, call them out on this.  Indeed, the fact that Daphne took FMLA leave for years and should have known the call-in requirements was particularly persuasive to this court when dismissing her FMLA claim.

This court decision is worth filing away for future use, ey?  Henceforth, this double maneuver shall be called the Daphne defense!

Use it sometime.

Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.