FMLA Does Not Excuse Employees From Complying with Call-In Requirements

A recent case reminds employers that employees can usually be held accountable for complying with call-in requirements, even when the Family and Medical Leave Act may apply to their absences. Moreover, when calling in, employees must provide sufficient information to trigger FMLA.

In Koch v. Thames Healthcare Group, LLC, the employer had an attendance policy requiring employees to notify their supervisors at least two hours before their shift starts if they will miss work. Failure to do so is considered a no-call/no-show, and two no-call/no-shows results in termination.

The nurse, who had a history of attendance issues, missed two consecutive shifts – the first for a doctor’s appointment for a wrist injury, and with no explanation for the second, other than she would miss the rest of the week – and failed to provide timely notification. Although her supervisor completed the termination paperwork, she held off on submitting it to human resources to give the nurse a chance to explain her absences. The nurse then missed the next two shifts. In her untimely notification, she stated that she had run out of medication and could not leave the house, without further explanation. Her supervisor submitted the termination paperwork. On the fifth day, the nurse provided a doctor’s note stating that she was being treated for major depressive order and ADHD and had run out of medication, and excusing her from work for the week. Nonetheless, she was terminated. She then sued, alleging among other things, interference with her FMLA rights. The trial court threw out her claims and she appealed.

The U.S. Court of Appeals for the Sixth Circuit upheld the trial court’s decision. It found that the nurse had failed to provide proper notice of her need for leave, as her calls did not contain sufficient information for her employer to conclude that the FMLA applied. Additionally, she failed to comply with the FMLA’s requirement as much notice as practicable for foreseeable leave (where 30 days is not possible), as she knew she had run out of medication prior to her first absence but did not inform her supervisor in the first call. And “more importantly,” the Sixth Circuit emphasized that her calls to her supervisor did not comply with the two-hour pre-shift deadline, and were therefore tardy and subject to discipline under the attendance policy. While the unforeseeable need for leave might require notice after the fact, it was clear, based on the numerous other calls and texts that she made during the week, that she easily could have communicated with her supervisor in a timely manner.

The lesson for employers here is that they can, and should, hold employees accountable for complying with reasonable call-in procedures. Employees may also be held accountable for providing sufficient information to trigger any FMLA coverage. General statements of feeling sick or running out of medication is not enough to put the employer on notice of the need for FMLA leave.