Employee Must Follow Call-In Procedure for FMLA Leave to Be Protected


By Rex P. Fennessey July 3, 2018
Employee Must Follow Call-In Procedure for FMLA Leave to Be Protected

​The Family and Medical Leave Act (FMLA) does not protect leave when an employee fails to use the employer's established call-in policy regarding planned leaves of absence.

SCI Tennessee Funeral Services, doing business as Forest Lawn Funeral Home and Memorial Gardens, employed a funeral director who developed an ear condition: Meniere's disease. On Jan. 9, 2015, the employee asked his supervisor for approximately one week off for surgery to address his condition.

The funeral home had a policy requiring employees to give notice to its leave and disability center of any FMLA leave. The employee had received, read and signed the employee handbook containing that policy but never called the center to give notice of need for leave for his scheduled surgery.

On the same day that the employee informed the supervisor of his need for leave, a body was delivered to the facility where the employee was temporarily working. The funeral home's policy and Tennessee law required that a body be placed in a refrigeration unit within 24 hours of the funeral home's taking custody of the body. On Jan. 10, 2015, it was discovered that the body had not been refrigerated as required and was instead left overnight in a visitation room. The following day, the employee was terminated for failing to ensure the body was properly refrigerated.

He sued the funeral home, alleging that it had interfered with his right to FMLA leave when it failed to provide leave for his surgery and retaliated against him when it terminated him after he requested FMLA leave for his surgery.

[SHRM members-only toolkit: Managing Family and Medical Leave]

The trial court granted the funeral home summary judgment on the FMLA claims. Because the funeral home had an established call-in policy that the employee was aware of but failed to use, the court found that he had failed to provide the funeral home notice of his need to take FMLA leave or engage in FMLA-protected activity. Notably, the court rejected the plaintiff's argument that he had provided notice of his need for FMLA leave when he informed his supervisor of his need for leave for surgery. The court found that FMLA regulations expressly permit denial of FMLA leave when an employee fails to use the employer's established call-in policy for such leave.

Everson v. SCI Tennessee Funeral Services d/b/a Forest Lawn Funeral Home and Memorial Gardens, M.D. Tenn., No. 3:15-CV-01478 (April 20, 2018).

Professional Pointer: This case presents a good example of the value of established and well-disseminated call-in policies for FMLA and other kinds of leave. Had the funeral home not established a call-in policy for FMLA leave, the FMLA interference and retaliation claims may have survived summary judgment.

Rex P. Fennessey is an attorney with McMahon Berger P.C., the Worklaw® Network member firm in St. Louis.


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