Lessons for Employers on Call-In Requirements From a Rather Troubling FMLA/ADA Decision

 In

It is well-established that, under both the Family and Medical Leave Act and the Americans with Disabilities Act, employers may require employees to comply with normal call-in requirements, “absent unusual circumstances.” Additionally, employees are required to respond to an employer’s reasonable questions about a leave request and failure to do so may result in denial of FMLA leave. But a recent case from the U.S. Court of Appeals from the Sixth Circuit would apply a high standard for enforcing that requirement and offers other guidance for employers.

Background of the Case. In Crispell v. FCA US, LLC, the employee was approved for intermittent FMLA leave for mental health issues. Under employer policy, as negotiated with the union, failure to call in 30 minutes before their start time for any absence or tardiness would result in disciplinary action, unless the employee could provide an explanation for why they could not comply. Supervisors also had discretion to excuse the failure. Here, the employee received discipline for several incidents where she called in less than 30 minutes before her start. After each incident, she submitted a letter from her doctor that simply stated her “covered illness” was the reason she could not comply but, according to the employer, she refused to provide any further reason for why she failed to meet the call-in requirement. Following her termination for another tardiness event where she was 3 minutes late to work, she sued. The federal district court dismissed all of her claims.

The Court’s Decision. The Sixth Circuit (with one of the three judges on the panel vehemently dissenting), however, reinstated her case, finding that there were circumstances that excused her failure to meet the call-in requirement, in that she submitted letters from her doctor that cited her illness as the reason for her non-compliance and that the employer already knew the details of her medical condition. Although the Sixth Circuit acknowledged that “additional details of [the employee’s] symptoms” regarding the tardiness events in question “may have been helpful,” it found that a jury could reasonably conclude that the doctor’s letters were sufficient to constitute unusual circumstances that excused her failure to comply. In addition, because the employee disputed whether the employer requested additional information, this was an issue that should have been left for a jury to decide.

Lessons for Employers. Interestingly, the Sixth Circuit issued this as an “unpublished” opinion, meaning that it does not establish legal precedent for other employers and employees. Nonetheless, the Sixth Circuit’s approach contains lessons for employers, including the following:

  • Establish clear, written call-in procedures for when an employee will be late or absent, and state that these procedures apply when employees are calling out for FMLA or ADA reasons.
  • Enforce the call-in requirements consistently. Allowing supervisors to exercise general discretion over when or how to enforce such requirements may result in findings that they are being enforced unfairly in FMLA or ADA situations. For example, here the employee was fired after being 3 minutes late, but another employee who was also 3 minutes late was not disciplined, which suggested that the employee was being treated less favorably.
  • Excuse non-compliance where there are “unusual circumstances” that prevent the employee from calling-in timely. Under this case, however, the Sixth Circuit would find that providing a doctor’s note vaguely explaining that the employee’s condition is the reason for the inability to call in might be sufficient to constitute “unusual circumstances.” It does not appear that other courts would necessarily agree, but risk-averse employers should perhaps err on the side of excusing the failure where there is at least some medical input.
  • If additional information is needed to clarify whether the incident is FMLA- or ADA-covered, put the request in writing. Here, because the employer’s request was only verbal, the employee could create a dispute of fact by arguing that it never happened.