Employees who no-call/no-show for a month lose FMLA lawsuits

Before going any further, allow me to wish a Happy Belated 20th Birthday to the Family and Medical Leave Act.

What can I say? I plumb forgot. To atone, I got Fammy Med a Walkman. (Kids, that’s what we used to listen to music in 1993. It doesn’t walk and it’s not a man. But it did play my mix tapes — sigh).

Next year, to celebrate the big 2-1, drinks are on me. Sizzurpbombs! Remy Martin Cognac Louis XIII.

For today, we’ll do an FMLA post in tribute.

A few weeks ago, I posted “3 essential FMLA tools for your HR-compliance arsenal,” one of which was to have a publicized attendance rule and enforce it.

That post immediately crossed my mind as, yesterday, I read these undisputed facts from a recent Eighth Circuit decision:

  • The plaintiff missed work for the entire month of February 2008.
  • Although the plaintiff later claimed her depression caused her absences, she never told her employer that she was ill (or gave her employer any real clue that she needed FMLA leave).
  • The plaintiff failed to use her employer’s call-in procedure for her February absences — all of them. (This notwithstanding that the plaintiff had her employer’s call-out number programmed into her phone and had used it over 100 times before).
  • The employer’s rule was three days of no-call-/no-show is a voluntary resignation.

Here’s the deal under the FMLA, folks. Most employers — really, everyone other than Carnac the Magnificent and Nate Silver — are not clairvoyant.

If an employee needs FMLA, the employee needs to let the employer know that. The general rule is 30 days’ notice. However, when an employee’s serious health condition occurs out of the blue, the employee must provide notice of the need for FMLA leave as soon as practicable — as opposed to, you know, never, like the plaintiff here.

And that was the plaintiff’s demise here. No FMLA notice means no FMLA leave. No FMLA leave means the plaintiff needs to abide by the employer’s work rules regarding call-outs. No call out for 29 days means the plaintiff ends up on this blog as a cautionary tale.

I live to give.

“Doing What’s Right – Not Just What’s Legal”
Contact Information