Professional Service Agreement

No FMLA Violation in Suspending Employee Who Failed to Follow Call-in Policy

April 17, 2017

An employee who was approved for intermittent Family and Medical Leave Act (FMLA) leave and later placed on several weeks of unpaid suspensions for failing to follow company policy for timely reporting unplanned absences failed to revive his claims of FMLA interference. The FMLA and accompanying regulations require employees to follow their employer’s “usual and customary” procedures for requesting FMLA leave absent “unusual circumstances,” which were not present here.

The employee, an electrician at a GM automobile plant, suffered from iron-deficiency anemia. In an acute phase, his condition could cause him to experience blackouts, heart palpitations, and fatigue. In mid-November 2011, he requested and was approved for six months of intermittent FMLA leave, which ran from November 11 to May 11, 2015.

Attendance call-in policy. Under GM’s union-negotiated attendance policy, employees were required to report an unplanned absence at least 30 minutes before their shift or face discipline if they couldn’t satisfactorily explain why they failed to do so. Employees approved for FMLA leave were also required to notify the benefits center by the end of the shift to report their FMLA absence. Employees are permitted five “free pass days” under the attendance policy, which the plaintiff had used up prior to his request for FMLA leave in November. He had also received two written warnings for untimely reporting of two non-FMLA absences in October.

Unpaid suspensions. After the employee was absent again on November 12, 13, and 14, he had more unexcused absences counted against him, resulting in a two-week unpaid suspension. GM subsequently rescinded its disciplinary action for November 12 and 13 after his approval for FMLA intermittent leave. However, the November 14 absence was still treated as untimely since he failed to call in 30 minutes before his shift began and missed the FMLA absence call-in time by over an hour. As a result, his two-week suspension was reduced by one week.

The employee received another two-week unpaid suspension after failing to timely report absences on November 22 and 23. He was also denied FMLA coverage for absences on December 6 and 8 since he failed to timely contact the benefits line on both occasions. As a result, he received a 30-day unpaid suspension, though he should have been discharged at this point under the policy. He went on to successfully take over 30 more days of intermittent FMLA leave.

No interference. The Fifth Circuit rejected the employee’s contention that his calls to absence and benefits lines created a triable issue as to whether he provided reasonable notice of his need for unplanned FMLA leave. Significantly, FMLA regulations explicitly allow an employer to condition FMLA leave upon an employee’s compliance with their usual notice and procedural requirements—absent unusual circumstances—even when an employee’s need for leave is unforeseeable. Therefore, discipline resulting from an employee’s failure to follow such policies does not constitute FMLA interference unless he can show unusual circumstances.

Here, the employee’s phone records showed that he failed to timely report his unplanned FMLA leave on the dates in question. He also failed to show that on those occasions, unusual circumstances prevented him from following the union-negotiated procedures. Though he argued that his disability, in a sudden “acute phase” could constitute a sudden medical issue or emergency, he provided no evidence that he reached the acute stage or experienced a medical emergency on the days in question. He also failed to explain why “unusual circumstances” left him capable of calling the attendance line, but not the benefits line, on three of the dates at issue.

The Fifth Circuit also rejected the employee’s contention that his failure to comply with GM’s usual and customary procedures could not be grounds for discipline since his untimely phone calls provided reasonable notice of his unforeseen absences irrespective of company policies. In so arguing, he relied upon cases that were predicated on outdated, materially different regulations. Since the revised regulations explicitly allow employers to condition FMLA leave on following the employer’s policy, no triable issues existed as to his FMLA interference claim.

No FMLA retaliation. The employee also failed to show how his suspensions were caused by his attempts to take FMLA leave rather than his failure to follow the absence approval process. Notably, he still worked for GM and had been granted more than 30 days of intermittent FMLA leave since his last disciplinary layoff by following the call-in procedure. He also undisputedly should have been terminated for his unexcused absences but was instead offered the opportunity to correct his attendance problems.

Disability bias. Finally, his disability bias claim also failed. Though the employee argued that his request for FMLA leave was a request for an accommodation, the Fifth Circuit explained that requesting FMLA leave alone is not a request for a reasonable accommodation under the ADA. An employee who requests FMLA leave asserts he has a “serious health condition” that makes him unable to perform the functions of his job. On the other hand, a request for an accommodation under the ADA is a claim that the employee can perform the essential functions of their job with or without reasonable accommodation.

Therefore, “an employee seeking FMLA leave is by nature arguing that he cannot perform the functions of the job, while an employee requesting a reasonable accommodation communicates that he can perform the essential functions of the job.” Here, there was no indication that he was requesting a reasonable accommodation. Rather, the record demonstrated that he was disciplined for failing to follow the absence procedure, and subsequently granted leave when he successfully followed it.