Contributed by Brandon Anderson
Once again, the courts have upheld an employer’s right to strictly enforce its call-in policy even if an employee is absent on FMLA leave. While this isn’t the first time that a court has made this holding, the United States Court of Appeals for the Sixth Circuit case, Strouder, et al. v. Dana Light Axle Manufacturing, Case No. 12-5835, serves as a reminder about how an employer should go about enforcing such a policy.
The case involved an employee who unquestionably had some attendance issues. The crux of the case pertained to a September 30, 2009 meeting, and, not surprisingly, the parties disputed exactly what happened during the meeting. Essentially, the parties contested whether the employee informed the employer that he had a hernia and whether he advised the employer that he was having surgery the following week. There was no question, however, that the employer was aware that the employee’s physician placed lifting restriction on his work activities. The company did not have any light duty positions and advised the employee that, as a result, he could not work. The employee responded either (a) he would have the weight restrictions removed or (b) he would try and have the weight restriction removed. Regardless, the weight restrictions were not removed and the employee did not report back to work.
Following the meeting, on October 1 the employer advised the employee that his medical certification was still deficient and gave him until October 7 to submit proper certification. The employee did not report for work on October 1, 2, 5, or 6, and he did not call in pursuant to company policy on those days. As a result, on October 6, 2009, the employer sent the employee a letter advising him that his failure to call in resulted in his voluntary resignation and indicated that if there were extenuating circumstances that the employer should consider, he should contact his supervisor immediately. On October 7, before receiving the termination letter, the employee obtained a completed medical certification and hand-delivered it to the company before he went in for his surgery. The termination letter was received the following day, and, at that point, he began calling in to advise the company of his absence, in accordance with company policy.
The employee later admitted that he was aware of the call-in procedure, but thought that he did not need to call in because the company knew he was having surgery and knew that he was going to be out for a period of time.
In affirming the summary judgment determination, the Court first addressed the issue of whether an employer may enforce its own internal notice requirements (i.e. calling in on a daily basis) even if the requirement goes beyond the “bare minimum” that would typically be sufficient under the FMLA. The court diverged from an earlier Sixth Circuit case decided under the old regulations and concluded that an employer can enforce its call-in requirements “unless unusual circumstances justify the employee’s failure to comply with the employer’s [call-in] requirements.”
The court then found that the employee did not produce any evidence demonstrating unusual circumstances that would have justified his failure to comply with the call-in policy, and, therefore, upheld the granting of summary judgment.
There is an important take away from this case. Maintain and enforce call-in procedures regardless of whether the absence is FMLA related or not? Well, yes, but this is old news. The more important take away is close the circle when an employee fails to follow internal policies in utilizing FMLA—whether in a letter or in a disciplinary interview, ask the employee whether there were any unusual circumstances that prevented him or her from complying with company policies.