Family and Medical Leave Act 101: If Employee Abandons Job, Employee Abandons Right to FMLA Leave

Contributed by Carly Zuba

At times, navigating the rough waters of the Family and Medical Leave Act (FMLA) can be understandably difficult and confusing for employers. Generally, the FMLA provides eligible employees with twelve weeks of leave during any twelve-month period if they have a serious health condition that makes them unable to perform the functions of their position or if they have to care for an immediate family member who has a serious health condition. While the statute provides that it is unlawful for an employer to interfere with, restrain, or deny the exercise of any right provided under the FMLA, the statute also leaves a lot of room for interpretation — which in turn creates a ton of questions for employers. For instance, can an employer terminate an employee if the employee fails to show up for his or her assigned shifts following a period of intermittent FMLA leave, without such termination constituting FMLA interference? Well, the Eighth Circuit recently ruled that a cable customer service representative who was terminated as a voluntary resignation after failing to call in or show up for work on three consecutive shifts has no viable FMLA interference claim (Ballato v. Comcast Corp., 8th Cir., No. 11-2744, 4/27/12).

Relevant Facts: 

  • Ballato, the employee, was granted intermittent FMLA leave on account of chronic fatigue and depression. 
  • Upon returning from 11 days of FMLA leave, Ballato sent a series of emails expressing job dissatisfaction.  In response, the company deactivated Ballato’s access to company computer systems and the building, since it viewed some of the emails as “disturbing.” 
  • The company attempted to call Ballato, but Ballato did not return the calls, since he thought he was being terminated. 
  • That same day, Ballato called the company’s Resource Center to request FMLA leave, but the department told him to contact his supervisor.  Ballato failed to do so.
  • Ballato went to work that day and was denied entrance since his badge was deactivated. 
  • He erroneously believed he was fired, and proceeded to not report to work as scheduled for three consecutive shifts; thus, the company terminated him due to unexcused absences.

While the court agreed that the above series of events leading to his termination did not exactly portray a smooth firing process, the court felt that the events also did not show interference with Ballato’s FMLA rights.  The court determined that the employee had many opportunities to correct his misperceptions that he had been terminated before missing three consecutive shifts; indeed, it explained that “an employee who requests FMLA leave has no greater protection against termination for reasons unrelated to FMLA than she did before taking the leave.”

Take-Away for Employers: Employees are not granted permission or an unfettered right to violate other unrelated company policies or to cut off communications with the employer or mislead the employer about their absences while they are on FMLA leave, otherwise they may lose its protection.  Though these are fact-specific inquiries, usually employers will not be on the line for FMLA interference if they terminate an employee who requested FMLA leave for reasons unrelated to FMLA.  As always, if you have any questions regarding the possible termination of an employee, it is always a good idea to contact an experienced labor and employment attorney before moving forward.