By: Carol G. Schley, Clark Hill PLC
In a recent decision by the federal Sixth Circuit Court of Appeals (which includes Michigan), the court determined that an employer could lawfully enforce its no fault attendance policy against an employee, despite the fact that the employee was absent for an FMLA-qualifying reason.
The case, Srouder v. Dana Light Axle Manufacturing, LLC, 725 F.3d 608 (6th Cir. 2013), concerned assembly worker Matt White, whose job required regular lifting of items ranging from 20 to 75 pounds. In September 2009, White suffered a recurrence of stomach problems, including a hernia. During that month, he took several days of FMLA leave. On September 25, White reported to work but was sent home after failing to timely submit completed FMLA paperwork for previous absences.
On September 30, White met with Dana management to discuss his ongoing failure to submit proper and timely documentation for his FMLA-related absences. At this meeting, White submitted a doctor’s note restricting him from lifting over 20 pounds. The HR manager informed White that given this restriction, he could not work in the plant, and he responded that he would speak to his physician to have the weight restriction removed. In addition, while the exact nature of the discussion was disputed between the parties, White informed Dana about his stomach problems and his possible need for hernia surgery. It was White’s understanding that he had adequately informed Dana at the meeting that he would in fact be imminently having surgery and thus would require additional FMLA leave.
White did not report to work and also failed to call in his absences from October 1 through 6. His failure to call in his absences violated Dana’s “no fault” attendance policy, which required employees to call a certain phone number each day they were absent. The policy further provided that, “[i]f an individual fails to report to work for two days and has not called in, that person is considered to have voluntarily quit.” On October 6, Dana sent a letter to White stating that he was deemed to have voluntarily terminated his employment due to his failure to comply with the attendance policy. On October 7, before receiving the termination letter, White dropped off his completed FMLA paperwork at Dana’s facility and underwent hernia surgery later that same day.
After his employment was terminated, White filed a lawsuit against Dana, asserting its termination of his employment pursuant to the no-fault attendance policy violated the FMLA, since Dana was notified at the September 30 meeting that he was going to have surgery and that he therefore would be absent for an FMLA-qualifying reason. The Court of Appeals was asked to determine, “whether an employer may impose and enforce its own internal notice requirements, even if those requirements go beyond the bare minimum that would generally be sufficient under the FMLA to constitute proper notice.” Id. at 613. In answering this question, the Court noted that it held in a 2003 case that employers could not require employees to comply with attendance policies more strict than the FMLA. However, the Court noted that the controlling FMLA regulation was “materially altered” in 2009, and that under the new regulation, Dana could lawfully require White to comply with its no fault attendance policy. According to the court, under the revised regulation, “an employer may enforce its usual and customary notice and procedural requirements against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee’s failure to comply with the employer’s requirements.” Id. at 615. The Court found that White presented no evidence of “unusual circumstances” showing that he was unable to call in his absences from October 1 to 6, especially in light of the fact that he visited Dana’s facility on October 7, the same day as his hernia surgery. Thus, the court concluded, “regardless of whether White provided sufficient FMLA notice to Dana during the September 30 meeting, Dana was nevertheless justified in terminating White’s employment for his failure to follow the call-in requirements of Dana’s attendance policy.” Id.
As held by the Srouder case, employers may enforce their attendance policy against employees who also may be entitled to FMLA leave, even if the policy is more restrictive than the FMLA. However, before adverse action, such as termination, is taken against an employee, a careful analysis must be performed to ensure that the employer has acted in accordance with the FMLA, its own policies and other governing laws. In this regard, it is always best to seek the advice of counsel.
Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC. She can be reached at email@example.com or (313) 965-8524.
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 Everett Srouder was another plaintiff in the case who also sued Dana under the FMLA. Srouder settled his claim so the Court of Appeals decided only White’s claim.