A tale of two FMLA policies
Two can be one too many
Kristen, an employee with a less-than-stellar attendance record, began taking FMLA leave for her own condition. On at least one of those days when she took FMLA leave, she contacted her supervisor to report the absence. Subsequently, she racked up enough attendance issues, and was fired.
In response, she sued, arguing that she should not have been fired because at least one of those absences should have been protected by the FMLA. Since it was protected, she would not have met the absence threshold for termination.
The employer, on the other hand, argued that the one day in question was not FMLA leave because Kristen did not follow the company absence reporting requirements. The employer indicated that Kristen was supposed to contact the third party FMLA administrator, not her supervisor to report an FMLA absence. Because she did not follow the company policy, the absence in question was not FMLA protected, and it was counted in her attendance issues.
The employer went on to indicate that all employees had access to the policy, which was online, and were expected to follow it.
But wait, claimed Kristen! The company had another FMLA policy, which indicated that employees were supposed to call their supervisor to report an FMLA absence. Since she followed that policy, the absence in question should have been FMLA leave.
The court held that an employer cannot avoid a jury trial on the basis that its employee failed to adhere to its internal FMLA policy when there is evidence that, in reality, the employer lacked a uniform policy.
The employer in this case didn’t deny that it had the second policy Kristen pointed out. In fact, a company representative testified that employees had access to both policies. But the employer tried to argue that the policy on the company’s intranet portal was the "usual and customary" one. But Kristen’s argument that she complied with the requirement set out in the second policy was evidence that she gave reasonable notice of her intent to take leave on the day in question.
According to the company representative, all employees had access to both policies, and neither of the two policy documents state which one governed in the event of a conflict between the two.
Therefore, the case was allowed to go to trial. Of note is that the case named not only the company as a defendant, but also an individual supervisor who was involved in Kristen’s discipline and termination.
Hopefully, your company has only one FMLA policy related to call-in procedures. If not, and there’s no indication which one presides, employees may be able to follow whichever one they choose. Now may be a good time to make sure you have only one.
Archey v. AT&T Mobility Services, LLC, E.D. Kentucky, No. 17-91, March 29, 2019.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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