Worker’s Post-Termination Report of FMLA Leave Was Ineffective

Takeaway: Despite this decision, the Family and Medical Leave Act provides significant employee protections, including sometimes allowing employees to report taking FMLA leave after the fact. 

An employee generally cannot report Family and Medical Leave Act (FMLA) leave after termination for absences leading to their discharge, according to a federal appeals court decision.

Toolkit: Everything You Need to Know About Termination

The plaintiff began working for Ascension Health Alliance as a human resources specialist in March 2019. In July 2021, the plaintiff was granted intermittent FMLA leave for her migraines. She was required to report her intermittent FMLA leave usage to Ascension’s third-party leave administrator, Sedgwick Claims Management Services Inc., on the same day the absence occurs. She was also required to notify her supervisor of any time taken under the FMLA as soon as practicable. She used her intermittent FMLA leave at least eight times during the summer of 2021.

In late August 2021, the plaintiff stopped reporting to work entirely. She requested continuous military leave under the FMLA from August through December 2021 based on her ex-husband’s military orders. Sedgwick denied that request as unauthorized by the FMLA, but the plaintiff did not return to work. Instead, in October 2021, she applied for retroactive continuous FMLA leave to care for her son, who had a serious health condition. Sedgwick approved that request for Aug. 31 through Nov. 3, 2021. 

When the plaintiff’s continuous FMLA leave expired in November, however, she did not return to work. An Ascension employee contacted her about the conclusion of her leave and instructed her at least three times to return to work on Nov. 15. He also told her that, if she did not return to work as instructed, Ascension would fire her. Instead, she applied for a personal leave of absence from Nov. 4 through Dec. 1, 2021, but that request was denied.

The plaintiff did not return to work on Nov. 15. She left a voicemail on Ascension’s absentee line that morning, stating that she had been unable to log in to her computer and assumed she had been terminated. She stated that it was a pleasure to work for Ascension, thanked Ascension for the opportunity, and expressed her intent to return company property.

Ascension terminated the plaintiff’s employment later that day, citing the reason as Leave Exhaust/Failure to Return to Work. On Nov. 16, the day after she was terminated, the plaintiff attempted to report intermittent FMLA leave to Sedgwick for her absences on Nov. 11, 12, and 15. Sedgwick notified Ascension of the plaintiff’s requests, but Ascension considered them invalid since she had been terminated the previous day.

The plaintiff then sued Ascension, alleging that her termination amounted to interference with and retaliation for her exercise of FMLA rights. The district court granted summary judgment to Ascension, holding that no reasonable jury could find in the plaintiff’s favor. It determined that the plaintiff had been terminated and was no longer entitled to FMLA leave at the time she attempted to retroactively report her November absences. The court also found that she had not reported those absences as soon as practicable, as required by FMLA regulations and Ascension’s policy. The plaintiff appealed to the 7th U.S. Circuit Court of Appeals.

Toolkit: Navigating the FMLA

On appeal, the 7th Circuit considered the plaintiff’s contention that she was entitled to retroactively report her Nov. 11, 12, and 15 absences as FMLA leave on Nov. 16. The relevant FMLA regulations require employees to give notice of leave as soon as practicable under the facts and circumstances of the particular case, and generally within the time prescribed by the employer’s usual and customary notice requirements. Ascension policy required the plaintiff to report her intermittent FMLA leave usage to Sedgwick on the same day the absence occurs, and to notify her supervisor of her absence as soon as practicable. 

The 7th Circuit found that the plaintiff could not justify failing to report absences on the same day they occurred. While the plaintiff argued that she had been permitted to report intermittent FMLA absences as much as 24 hours after their occurrence, Sedgwick’s records showed just a single instance of her reporting an intermittent FMLA absence one day late. Even then, she texted her supervisor on the day of the absence about her migraine and intent to take leave.

The plaintiff also argued that certain internal company emails critical of her FMLA usage showed FMLA retaliation. The 7th Circuit, however, viewed the emails as showing an honest suspicion concerning whether the plaintiff was abusing FMLA leave and rejected this argument.

Thus, the 7th Circuit upheld the district court's dismissal of the case.

Chitwood v. Ascension Health Alliance, 7th Cir., No. 25-1933 (March 3, 2026).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.