June 2014

By: James B. Sherman, Esq.

A fired Minneapolis hotel employee filed a wrongful termination lawsuit in federal district court in Minnesota, alleging her discharge violated the Family and Medical Leave Act (FMLA). The case was unique in that the plaintiff may well have had a serious health condition justifying protected FMLA leave; however, her failure to follow explicit call-in procedures stated in the attendance policy of the employer’s handbook doomed her case.

The plaintiff was injured in a non-work related car accident. She came to work the next day but produced a doctor’s note excusing her from work for two (2) days until further evaluation. From that point on the employer began receiving periodic facsimiles from a clinic, purporting to excuse the employee for additional periods of a few days at a time. This went on for approximately an entire month. At no time did the employee call work to speak to a supervisor prior to missing her scheduled shifts, as required by the employee handbook. Moreover, when the employer tried to mail FMLA paperwork to the employee’s residence it was returned undelivered because she had moved without telling the employer of her new address.

In court the plaintiff argued that the employer’s knowledge of the car accident and its receipt of a steady stream of doctor’s notes, by fax, excusing her from work for approximately one full month, triggered an obligation to at least conditionally treat the absences as protected by the FMLA. However we argued, and the court agreed, that the plaintiff’s failure to reasonably communicate by following company call-in procedures, not only justified her termination but triggered no obligation on the part of the employer to offer or explore FMLA coverage.

It must be stressed that the court’s favorable decision in this case was very narrow, based on specific facts. The employer’s FMLA, attendance policy and call-in procedures were carefully scrutinized. Also, the employer here waited to verify that the employee had no valid excuse for not calling in or updating her address (e.g. if she were medically incapacitated or otherwise unable to do so) before it terminated her. The employer also mailed FMLA paperwork during the employee’s lengthy absence, as a precautionary measure given the doctor’s notes. Ultimately, this decision stands as a rare victory in support of clear and evenly enforced attendance policies and call-in or other notification procedures.

For assistance with developing, implementing and/or enforcing FMLA notification and attendance policies that maximize employer’s rights in a variety of difficult scenarios under the FMLA, ADA, etc., contact our Minnesota office at 952-746-1700.