The Sixth Circuit recently held that employers can enforce strict call-off and attendance policies, even against employees who are using or requesting FMLA leave. In Srouder and White v. Dana Light Axle Manufacturing, LLC, 2013 WL 4007646 (6th Cir. Aug. 7, 2013), the company required employees to call off each day when they were absent and considered employees to have voluntarily resigned if they failed to call off for two consecutive days. The company terminated Matt White for not complying with this policy, and the court upheld the termination, notwithstanding the fact that White’s absence could have been covered by the FMLA.
White began treatment for stomach pain in September 2009 and called off on a number of days. White also planned to be off in October for hernia surgery. Although White submitted FMLA paperwork for these absences, the paperwork was incomplete, and the company told him to resubmit the paperwork in order to qualify for FMLA leave and comply with the company’s attendance policy.
After missing four more consecutive days of work without calling off (October 1, 2, 5 and 6), White dropped off revised FMLA paperwork on his way to the hospital to have the hernia surgery on October 7. However, the Company considered White’s FMLA paperwork to be too late and terminated White’s employment for violating the Company’s call-off and attendance policies.
White filed a lawsuit claiming the company unlawfully interfered with his FMLA rights. White relied on an earlier case that had interpreted an FMLA regulation that was subsequently amended. The amended regulation, 29 C.F.R. § 825.302(d), now provides, in relevant part, that: “[a]n employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.…An employee also may be required by an employer’s policy to contact a specific individual…Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA leave may be delayed or denied. However, FMLA-protected leave may not be delayed or denied where the employer’s policy requires notice to be given sooner than set forth in paragraph (a) of this section…”
The court observed that the amended regulation “explicitly permits employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s notice and procedural requirements, absent unusual circumstances.” Based on the amended regulation, and in the absence of any evidence of unusual circumstances explaining White’s failure to call off for four consecutive days, the court held that “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.”
The White case illustrates that employers can require employees to adhere to strict call-off and attendance policies so long as: (1) the policies do not require the employee to give more advance notice of the need for the leave than that required by the FMLA regulations (30 days for foreseeable leave and as soon as practicable for other circumstances); (2) the policies are uniformly applied to all absences; and (3) there is no reason to believe that the employee was unable to comply with those policies.