The Third Circuit Court of Appeals recently identified the difference between simply “requesting” leave from the Family and Medical Leave Act (FMLA) and “requesting and reporting” FMLA leave. Employer policy required that an employee request and be approved for FMLA leave and, once approved, report an FMLA absence when the absence was taken. In particular, the policy required that the employee, when taking an unscheduled absence, called a designated hotline, report the absence and indicate whether it was sick leave, FMLA leave, PTO leave or other leave.

In the case, the employee had requested and been approved for FMLA leave over a twelve month period. The employee was absent during the period, but she did not report the absences in accordance with the employer’s recall procedures; she canceled for the unscheduled absence, but did not declare the absence to be a period of leave designated by the FMLA. In other words, she didn’t report the absence as an FMLA leave.

After several unplanned absences, the employee’s supervisor met with the employee, provided her with copies of the appeal procedures, and reminded her that she should report the absences as an FMLA departure through the hotline. After another unplanned and unidentified absence, the employee received a final written warning and was again advised of the recall procedures. In accordance with the employer’s policy, the employee was terminated after a ninth unplanned and undesignated absence.

The employee argued that her absences were protected under the Americans with Disabilities Act (ADA), FMLA and the Pennsylvania Human Relations Act (PHRA) because she was approved for FMLA leave. The district court disagreed and concluded that his failure to follow the employer’s absence reporting policy had denied all of his requests. The Third Circuit agreed and specifically noted that regardless of whether absences were approved by the FMLA, the employee was required to adhere to the employer’s reporting procedures. “The [employer] acted within its prerogatives by dismissing [the employee] for his continued failure to report absences in accordance with its policies ”and the employee presented no argument to refute the employer’s legitimate reason for terminating her employment.

This case demonstrates several key factors in employee discipline and dismissal. Policies, and as demonstrated in this case, attendance policies should be written in simple, easy-to-understand language that clearly describes the procedures. Policies should be distributed to employees on a timely and regular basis and be readily available to employees. Supervisors should monitor policy violations and notify employees in writing of such violations. In this case, the employer provided advice on the FMLA / attendance procedures at the time the employee was approved for FMLA leave and the supervisor provided additional advice on the policy during counseling sessions and in a written warning. Clearly written policies and employee notice of procedures formed the basis of the decision in favor of the employer. The start of the new year is a good time for employers to review and update policies and remind employees of work-related procedures, including attendance policies.

The employer in the case was represented by Nancy Conrad and George Morrison. The notice is accessible here.

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