Employee violated no-call/no-show policy
Key to remember: Employees must provide enough information to put employers on notice of the need for FMLA leave. Simply indicating the lack of medication is not enough and may result in policy violations.
Applies to: Private employers with 50 or more employees and all public employers.
Impact to customers: Employers benefit from knowing what works and what doesn’t work related to FMLA. Employers may terminate employees who fail to follow their attendance policies, particularly when employees don’t communicate the reason for the violation.
For the duration of her employment, Zelda had absenteeism issues. The employer accommodated chronically absent or tardy employees by providing counseling and warnings before termination. But, if an employee were to miss a scheduled shift for any reason, she had to notify the company at least two hours before the shift started. If she failed to do so, she was deemed a no-call/no-show. And after two no-call/no-shows, the employee was automatically terminated.
Due to her poor attendance, Zelda was warned, counselled, and suspended.
One Monday, Zelda was scheduled to begin work at 7:00 a.m. but did not show. She texted Stephanie, her supervisor, at 7:24 a.m., stating that she had a doctor’s appointment for a wrist injury at 8:30 a.m. and that she would get to work right after it was done, but she never did.
Zelda missed the following days, calling in on Tuesday morning saying she would be out the rest of the week, and again on Wednesday evening when she said she was “afraid to leave [her] house [that] week” and that she “ran out of samples, and it hit [her] hard Sunday.” Given the lack of information in Zelda’s messages and her poor attendance, Stephanie stated termination proceedings.
On Friday, Zelda left a doctor’s letter on Stephanie’s desk excusing Zelda for the week. But it was too late, Zelda was terminated per the company policy.
Not surprisingly, Zelda sued, arguing that the termination violated the FMLA.
In court, the employer argued that Zelda did not provide enough information in a timely manner to put it on notice of the need for leave, so her absences were counted under the company’s policy.
The court found that Zelda did not properly notify her employer that she intended to take FMLA leave during the week in question. Her call on Monday morning indicated only that she would be out the rest of the week without further explanation. Her call on Tuesday evening referenced only her medication issue but did not say that it affected her condition.
Zelda’s absence was also foreseeable. She ran out of medication on Sunday, but didn’t mention that until later in the week, despite calling in on Monday about her injured wrist.
Zelda was able to contact the employer to report an absence in time, since she had sent and received over 700 calls/messages during that week. Therefore, she could not claim that her need for leave was unforeseeable, making the calls late under the policy requirement to call in at least two hours before the shift was to begin.
By the time the doctor’s letter was provided, Zelda had two no-call/no-show incidents, so it was too late. The court sided with the employer.
This case lends support for employers to act when employees don’t provide enough information and company policy calls for termination for failing to call in on time. While there may be situations in which employees are unable to call in, this was not one of them.
Koch v. Thames Healthcare Group, LLC, 6th Circuit Court of Appeals, No. 20-5367, May 15, 2021.
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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