Take a page out of this employer’s playbook for dealing with FMLA and absenteeism.


When a company has an employee who is approved for leave under the Family and Medical Leave Act, sometimes that employer get nervous about parsing FMLA-qualifying absences from other sick days that have nothing whatsoever to do with the employee’s underlying serious health condition. The end result is an employee who gets not only FMLA leave but extra leave that exceeds his or her bank of time off.

Those employers, well, they’re shook!

Let’s see how one employer handled it the right way.

In Bertig v. Julia Ribaudo Healthcare Group, LLC (opinion here), the plaintiff was approved to take FMLA for bladder cancer and asthma. Her FMLA leave ran from May 29, 2012, to June 25, 2012.

The following year, the plaintiff missed 13 days between April 2013 and April 2014. During this period, she called in sick for various reasons including foot pain; a stress fracture in her foot; an upset GI; diarrhea and a temperature; stomach cramps; a sore throat; dizziness; and a common cold.

Now, the company had an absenteeism policy. And, that policy provided that 7 absences in a rolling 12-month period would lead to immediate termination of employment. So, it should come as no surprise that the company fired the plaintiff to her 13 days off from conditions that seemingly don’t rise to the level of serious health conditions.

But, wait! What about that prior FMLA leave? Is there a reason for concern here?

Well, what about it Judge Munley from the United States District Court for the Middle District of Pennsylvania? Does this smack of FMLA interference? Nope:

Plaintiff does have two disabilities that qualify her for FMLA leave. Plaintiff was entitled to take leave for these disabilities under the FMLA, as she had done in 2012 for a brief time period. However, by plaintiff’s own admission, most of her absences between April 2013 and April 2014 were unrelated to her asthma and were unrelated to her bladder cancer—the FMLA qualifying disabilities.

During plaintiff’s deposition, counsel for the defendants asked plaintiff the reasoning behind every absence that she took between April 2013 and April 2014. As plaintiff chronologically reviewed the call off reports with defense counsel, plaintiff confirmed reasons unrelated to her cancer or asthma for ten out of twelve of those days in which she called in sick.

Now, had the majority of those days off in 2013-14 been FMLA-qualifying, then FMLA trumps the employer’s absenteeism policy and the plaintiff’s FMLA interference claim has legs. However, those ten days, which is three more than allowed under the defendant’s policy, were enough to warrant termination of employment because none of ’em were for serious health conditions. So much for the plaintiff’s FMLA interference claim.

And good on this employer for enforcing its work rules.


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