FMLA Rights Do Not Supersede Compliance with Employer’s Policies

By Bryant S. Banes October 27, 2021
judge's gavel

​An employer could place an employee on probation following a series of absences when the employee's Family and Medical Leave Act (FMLA) certifications were outdated and her call-outs did not comply with her employer's absence-reporting policies, a federal district court decided.

In 2019, the plaintiff sued her employer, alleging interference with her FMLA rights. The plaintiff had experienced spontaneous flare-ups of leg swelling and pain since 2010 and received 12 weeks of approved intermittent FMLA leave each year. In accordance with the FMLA's recertification requirements, the plaintiff needed to annually provide her employer with updated medical documentation.

The employer also maintained a policy whereby an employee who is absent from a shift must notify the employer at least three hours before the worker's start time. An employee was required to make clear if he or she was using FMLA leave for an absence. Late call-outs and absences not covered by the FMLA were noted in the worker's record and could be grounds for disciplinary action.

Two years prior to her lawsuit, the plaintiff disputed three instances of absences and late call-outs that she claimed should have been covered by the FMLA and not counted against her. In the first instance, the plaintiff called out from her shift but had not submitted her annual medical documentation to recertify her FMLA claim.

In the second instance, the plaintiff, still without a certification, called out for a shift fewer than three hours before she was scheduled to begin. Following a reminder from the employer that this absence would be noted in the employee's record, the plaintiff submitted updated medical documentation. Weeks later, the plaintiff again called out late and received informal verbal coaching as a disciplinary action for her violation of the absence policy.

By the time she commenced her lawsuit, the plaintiff had received a corrective action notice—a more severe disciplinary action—for eight additional violations of the employer's absence-reporting policy in the preceding 12 months. Although the notice referenced the events and coaching from 2017, it did not state that she received the notice because of those prior events.

The plaintiff filed a claim for discrimination with the Equal Employment Opportunity Commission, which resulted in a notice of no findings. She subsequently initiated legal action. At the time of her suit, the plaintiff still worked for the employer.

In reviewing the plaintiff's conduct, the court noted that she could not show FMLA interference because the requirement that she submit annual medical certifications was reasonable and there was no evidence the plaintiff was ever denied FMLA benefits when she had an active medical certification. Instead, the plaintiff's disciplinary action was based on documented noncompliance with the employer's attendance policy. Thus, the court granted summary judgment in favor of the employer.

Reed v. Delta Air Lines Inc., E.D. Mich., No. 18-13990 (June 14, 2021).

Professional Pointer: FMLA regulations allow an employer to condition FMLA-protected leave on the employee's compliance with other company policies. Employers should maintain detailed records to document which infractions are related to a lack of FMLA certification and which, if any, are related to a violation of the employer's other usual requirements.

Bryant S. Banes is an attorney with Neel, Hooper & Banes, P.C., the Worklaw® Network member firm in Houston. 



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