Have It Your Way

By Elizabeth Chilcoat

Employers may enforce their own requirements for calling in absences, even if those requirements require an employee to do more than the FMLA ordinarily requires. In Srouder v. Dana Light Axle Mfg., No. 12-5835 (6th Cir. August 7, 2013), an employee claimed that his employer interfered with his use of FMLA leave by terminating his employment. Apparently, the employee was on intermittent FMLA leave for abdominal pain and a possible hernia. The employee asserted that, in a meeting about paperwork for his intermittent FMLA, he explained to the employer that he had upcoming surgery and would miss more work. According to the employee, the employer told him no light duty work, consistent with his lifting restrictions, was available in the meantime. Then, when the employee did not come to work for “those couple of days” before the surgery and failed to call the employer’s call-in number, personally, each day to report his absence, the employer treated it as a voluntary resignation. (Once he received notice of his separation from employment, he called in faithfully.) The employee never made it to trial on his FMLA claim because he had not complied with his employer’s call-in requirement. The recent change in FMLA regulations gave employers license to enforce their call-in requirements.

The moral of this story: Waiting to follow an employer’s call-in policy until after you’re fired won’t get you un-fired.

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