Employers can require employees observe FMLA call-out procedures, third Cir. says

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Diving letter:

  • One Pennsylvania hospital did not break the Family and Medical Leave Act (FMLA) when it fired an administrative secretary who violated its leave request and reporting policy. This was decided by the 3rd US Court of Appeal (Soutner v Penn State Health, USA). No. 20-1763 (3rd Cir., January 13, 2021)).
  • Penn State Health fired the secretary for having too many unscheduled absences. She claimed the absences were protected under the FMLA, the Americans with Disabilities Act, and Pennsylvania law. The hospital asked the staff to approve and document FMLA absences by requesting an absence through a third party administrator and flagging it through a dedicated “retrieval” line. The applicant applied for and was admitted to the FMLA for several days over a year, but was unable to report the absences.
  • The District Court ruled that the plaintiff’s failure to comply with the hospital’s absence policy nullified her claims. The appeals court upheld. An employee must meet the employer’s requirement to request leave unless those requirements conflict with the FMLA, the court said. An employer’s policy that an employee with an approved FMLA permit is required to report sick during work hours and report absence does not conflict with the FMLA, the court said. “An employer generally does not violate the FMLA if they terminate an employee for non-compliance with a policy that requires notification of absences, even if the absences that the employee did not report were protected by the FMLA,” it said and referred to a 2011 10th Circuit case.

Dive Insight:

This case shows that employers are generally free to have workers follow certain on-demand procedures.

Human Resources can design and communicate call-out guidelines, but may need to ensure that they are clearly worded. Uncertainty about the FMLA retrieval process allowed a Walmart employee’s lawsuit to be resuscitated after the 9th Circuit stated that “there was confusion that a company needed to be informed of its workers’ compensation claims and their vacation claims by having two different departments within The company had to contact the same company. “The court said one question remained,” whether [she] Has violated the policies and procedures for requesting leave and whether those policies were ambiguous. “

Jeff Nowak, now a shareholder in Litter, previously told HR Dive that FMLA regulations allow employers to require workers to follow the employer’s customary and customary drafting procedures to report an FMLA absence.

However, at least one court has ruled that an employer cannot deny FMLA leave based on FMLA-specific notice obligations that exceed the employer’s requirements for other types of leave. The parties eventually settled, and Nowak noted on his FMLA Insights blog that employers shouldn’t place too much emphasis on the court’s decision.

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