Federal Court Decision Supports Strict Call-In Procedures

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May 20, 2014

Many employers maintain no-fault attendance policies requiring advanced notice of absences and a voluntary quit provision when an employee fails to report to work for two days without providing notice. These policies assist companies in meeting client deadlines and properly monitoring employee performance. The Sixth Circuit Court of Appeals recently ruled that an employer may enforce such a policy against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee’s violation of the policy.

In Srouder, et al. v. Dana Light Axle Mfg, LLC, the employee, White, submitted an incomplete FMLA certification at a September 30 meeting that the company could not comply with as the restrictions prohibited him from working. The company sent him home and instructed him to speak with his physician about possibly having the restriction lifted. On October 1, the company sent White a memorandum outlining the deficiencies in the certification form and gave him until October 7 to correct them. White was absent on October 1, 2, 5, and failed to call-in as required by the company’s attendance policy. On October 6, the company sent White a termination letter pursuant to this policy. White brought suit for interference with FMLA leave.

The Court noted that the 2009 FMLA amendment clearly states: “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. Sec. 825.302(d). Based on this regulation, and because White did not offer an “unusual circumstance” warranting a departure from the policy, his claim failed.

This decision is not binding in Wisconsin; however, it does provide support for employers wishing to strictly enforce similar attendance policies. Unfortunately for employers, not much clarity was provided as to what is deemed an “unusual circumstance” warranting a departure from company policy. When this issue does arise, please contact Ruder Ware to discuss the fact scenario so your company can feel confident before making a similar decision.

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