A transit agency thought it had a clear-cut reason to fire an employee under its no-fault attendance policy. But a disputed call-out, followed by a retroactive FMLA approval, now means a jury gets to decide whether the termination was lawful.
TL;DR: A bus driver with a chronic medical condition was fired after hitting the maximum number of attendance points under a last-chance agreement. His final absence was logged as a child care issue, but he says it was due to a health emergency—and he applied for FMLA leave that was later approved to cover the date in question. The district court dismissed his claims, but the Third Circuit revived the case, citing unresolved factual questions about whether he gave enough FMLA notice.
đź“„ Read the Third Circuit opinion
One absence, two explanations, and a lawsuit
The employee, a bus operator with sickle cell anemia, had previously been suspended for attendance issues and was working under a last-chance agreement. On June 7, 2021, he called out and asked to use an Emergency at Home day. Company records noted the reason for the absence as “NO_BABYSITTER,” consistent with the employee’s admission that he mentioned not having child care during the call. Notably, the employee had previously received FMLA leave for his condition, and he testified that he also told the dispatcher he needed to go to the hospital for a flare-up of his condition.
Later that same day, he submitted a request for FMLA leave. The leave was ultimately approved and backdated to cover June 7. But by then, he had been assessed enough points to trigger automatic termination. A union grievance was filed, but the company upheld the decision under its no-fault policy.
Why the Third Circuit said summary judgment was premature
Under the Family and Medical Leave Act, employees are not required to use legal terms when requesting leave, but they must provide enough information for an employer to recognize that the absence may be FMLA-qualifying. The key is whether the employer had enough context to understand that the employee may need protected medical leave.
In this case, the district court concluded the employee’s call-out didn’t meet that threshold. Because the absence was logged as a child care issue rather than a health-related one, the court found that the employee had not given adequate notice, and it dismissed the FMLA interference and retaliation claims.
The Third Circuit reversed. It held that a jury should decide whether the employee’s communications were sufficient. He claimed he told the dispatcher he needed to go to the hospital, then submitted an FMLA request later that same day. That leave was ultimately approved and backdated to include the disputed absence. Since the FMLA prohibits employers from disciplining or firing employees for absences covered by FMLA—even when approval is retroactive—there was a genuine factual dispute requiring trial.
Because of these unresolved issues, the Third Circuit vacated the summary judgment ruling and sent the case back to the district court for further proceedings.
Employer takeaways
🔹 FMLA does not require any magic words
Employees aren’t required to mention the FMLA by name, but they must provide enough information to alert the employer that the absence may qualify for FMLA protection. A vague call-out—like simply saying they are sick or unavailable—is not enough. However, references to hospitalization, a chronic condition flare-up, or medical treatment may be sufficient to trigger the employer’s responsibilities.
🔹 No-fault attendance policies must account for FMLA
Even in a strict point-based system, employers cannot assess points for absences that qualify as FMLA leave. Protected leave—once approved—cannot legally be used to support discipline or discharge decisions, regardless of the timing or initial coding of the absence.
🔹 Internal records aren’t always definitive
If an employee’s testimony contradicts absence logs or call-in notes, summary judgment may not be appropriate. Courts often leave those credibility questions for a jury.
🔹 Frontline staff need to be FMLA-aware
Supervisors, dispatchers, and schedulers who take last-minute absence calls should be trained to recognize when an absence might implicate the FMLA—even if the employee doesn’t use legal terminology.
This decision underscores how quickly routine attendance enforcement can veer into FMLA territory. A single call-out can become the hinge point of a lawsuit—especially when protected leave is retroactively granted. Employers should review how absences are coded and ensure that real-time decision-makers are trained to recognize potential FMLA triggers and act accordingly.