By: Claudia D. Orr
Last month, in Cundiff v Lenawee Stamping Corp, the Sixth Circuit Court of Appeals began its opinion by stating: “The Family and Medical Leave Act confers a right to take leave, not a right to be absent without it.”Absent unusual circumstances, an employee may be fired if he does not follow the employer’s customary call-off procedures even if the employee would have been eligible to take leave under the Family and Medical Leave Act (“FMLA”).
In this case, the employer’s attendance policy required employees who were going to be late or absent from work to call a designated line at least 30 minutes before their shift would start. It also provided that if an employee was absent for three consecutive days without informing the employer, the employee would be fired.
Cundiff followed the attendance policy on Friday, August 3, 2012 and the following Monday stating he would be off for personal reasons. But he then failed to report to work or call off as required for the next three consecutive days. On August 10, the employer sent Cundiff a letter stating that he had been fired.
On August 12, Cundiff presented a doctor’s note that “excused” him from work for the three days he had been a no show/no call. When Cundiff was not reinstated, he sued claiming his employer interfered with his right to take leave under FMLA.
The District Court disagreed with Cundiff and its judgment in favor of the employer was affirmed by the Sixth Circuit (which hears appeals from the federal courts in Michigan, Ohio, Tennessee and Kentucky).
Cundiff argued that an employee eligible for FMLA leave can notify his employer of his intention to take leave after he is absent from work, rather than before. But the Sixth Circuit disagreed.
While FMLA grants up to 12 weeks of leave a year, it “does not grant that right unconditionally: it requires, among other things, that the employee give his employer ‘notice of his intent to take leave.’ And that notice must take a certain form, namely, the employee must ‘comply with [the employer’s] usual and customary notice and procedural requirements…absent unusual circumstances.’ 29 C.F.R. § 825.302(d). If the employee does not comply with those requirements, then the FMLA does not give him the right to take leave.”
This issue has been developing recently in court opinions and employers should take full advantage of it. Make sure your FMLA policy is current and that it requires employees to follow the usual customary call-in procedure. Clearly state what the call-in procedure is in your attendance policy. And, before you send the termination letter, consult with an experienced employment attorney, like the author.
This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an attorney at the Detroit office of the law firm Plunkett Cooney. She can be reached at firstname.lastname@example.org or at (313) 983-4863.
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