Worker Fired For Not Following Rules – Even When Taking FMLA Leave

By Eric B. Meyer

In that employee handbook of yours should be a page — maybe a few lines — on an employee’s responsibility to notify you if they are going to miss work. You know what I mean — who to call, when to call, that kind of stuff.

A recent case from the Sixth U.S. Circuit Court of Appeals based in Cincinnati reaffirms that employees need not relax these rules — even when the employee is seeking leave under the Family and Medical Leave Act.

In White v. Dana Light Axle Manufacturing, the employer had a simple rule: when you’re going to be out, call it in. The plaintiff, who needed FMLA leave for a hernia surgery, assumed that because he had previously met with the employer in person to discuss his upcoming hernia surgery, he didn’t need to later call in his absences.

FMLA leave may come with conditions

Unfortunately for the plaintiff, the U.S. Department of Labor disagreed when implementing its FMLA regulations, which state that “[w]here an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied. …”

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In other words, an employer may condition FMLA leave on its employee properly following it’s notice requirements. Consequently, the Sixth Circuit held that even though the plaintiff may have otherwise discussed FMLA leave with his employer, the employer could still fire the employee for not following the call-in requirements of its attendance policy.

So, here’s the deal: Just because someone is taking FMLA leave doesn’t give that person a free pass to ignore your call-out rules. Just make sure to apply your call-out/attendance policy evenly to everyone — those who take FMLA leave, and those who take leave for non-FMLA reasons. Because uneven enforcement smacks of FMLA interference.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


1 Comment on “Worker Fired For Not Following Rules – Even When Taking FMLA Leave

  1. Wow, that’s cheap. Not knowing all the details of this particular situation, it strikes me as kind of brutal for the employer to fire an employee who actually did notify them, just not in the way they wanted. We have a policy covering this, and it clearly states who to call and when, but I guarantee you if an employee talks to her supervisor about her upcoming surgery, we will take notice of it and when she doesn’t show up for work we’ll know why. And we won’t fire her. Getting surgery is highly stressful for some people, and I just don’t get why an employer would want to add to that stress.

    Now, if the employee didn’t actually tell their supervisor, or if there were other issues involved, like a willful disobedience of the policy or intentionally misleading the company, then yes, they should be fired. And maybe the company was just waiting for an excuse to let this person go…who knows? This just feels a tad underhanded to me, even if it is technically within the law.

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