Employee on FMLA Leave Has Obligation to Communicate with Employer


A recent case reminds employers that employees can be required to communicate with them while on Family and Medical Leave Act leave, and the failure to do so may jeopardize their employment.

In Alkins v. Boeing Co., the employee was on FMLA leave through February 19, 2017 and expected to return to work on February 20. He received several reminders of the upcoming expiration of his leave from the third-party leave administrator. In addition, pursuant to a last chance agreement arising from prior attendance issues, the employee was required to call in any absences. The employee did not return on February 20 and did not contact his employer. The employer confirmed with the leave administrator that the employee had not requested any extension of leave, and after the third day of absence, terminated his employment. In response to the termination, the employee requested a leave extension, which was subsequently approved by the leave administrator although he was no longer an employee. The employee then sued, in part for interference with his FMLA rights.

The U.S. Court of Appeals for the Third Circuit rejected the employee’s claim of FMLA interference, stating that the employee “indisputably” failed to give either the employer or the leave administrator notice of his intention to extend his FMLA leave prior to his termination. The Third Circuit noted that the employee had not communicated with anyone from the beginning of his leave through his termination, and that all the employer knew was that the employee was required to report to work for the three days leading up to his termination, that he did not do so, and that he did not tell the employer that he was unable to do so. His subsequent request for a leave extension did not change those facts.

This case reiterates the principle that employees have obligations, as well as rights, under the FMLA, and that their failure to comply with those obligations means that they will lose the protection of the law.