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  6.  » FMLA-Eligible Employee May Be Terminated for Violating Employer’s Leave Policy

FMLA-Eligible Employee May Be Terminated for Violating Employer’s Leave Policy

by | Feb 3, 2022 |

In Koch v. Thames Healthcare Group, the United States Court of Appeals for the Sixth Circuit has ruled that an employee may be terminated for violating her employer’s leave policy despite the fact that she may have been eligible for leave under the Family and Medical Leave Act (“FMLA”).

Law. The FMLA provides that when an employee seeks leave for a FMLA-qualifying reason, the employee need not expressly assert rights under FMLA, or even mention FMLA.  However, she must give the employer enough information for it to reasonably conclude that an FMLA-covered event may have occurred.

Generally, an employee must give 30 days’ advance notice for foreseeable leave, but if 30 days’ notice is not possible, e.g., because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given “as soon as practicable.”

Under the FMLA, it is “unlawful for employers to interfere with or deny an employee’s exercise of her FMLA rights.”

Facts. The employer’s leave policy says that if an employee is to miss a scheduled shift for any reason, she must notify her supervisor at least two hours before her shift starts. After two “no-call/no-shows,” an employee is automatically terminated.

The employee in question was chronically absent and was eventually placed on a 30-day probation period. Her absenteeism persisted and, eventually, she took a voluntary three-month leave of absence. Within her first month back, the employer suspended her for missing work during a one-week period, without permission and without timely notification. She was later terminated.

The employee then had her physician write that she was being treated for ADHD and Major Depressive Disorder and that her latest absence was due to the unavailability of prescribed medications.

When the employer refused to reinstate her, the employee sued for unlawful retaliation under the FMLA, claiming she had given adequate notice of the need for unforeseen leave under the law.

Sixth Circuit. The court ruled that the employee’s absence was “undoubtedly foreseeable.” Although she could not have given a 30-day notice, the employee would have known in advance that she was about to run out of medicine and could have notified the employer at that time. However, her communications with the employer merely conveyed that she would not be coming for the rest of the week, without further explanation.

More importantly, even these communications with the employer were not provided “as soon as practicable.”  In fact, one phone call to the employer was not made until eight minutes before her shift started, long after the leave policy’s two-hour-notice deadline.  This was also true with regards to the post-leave letter from the medical care provider.

The court further noted that while the employee claimed she could not contact her employer in a timely manner, over the course of the week in question, the employee had sent and received 702 text messages and placed and received over 10 phone calls to a variety of third parties.

Therefore, the court ruled that the employee had violated the employer’s leave policy and was subject to termination regardless of whether the medical condition made her eligible for FMLA leave.

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