publications full of ideas
Strict Enforcement of Attendance Procedures May Create Liability for Employers under FMLA

3.27.2017

Many employers include in their attendance policies a specific procedure by which employees must “call-in” to report an absence from work. Such policies typically impose disciplinary action, up to and including termination of employment, when an employee fails to follow the employer’s procedure or is otherwise a “no-call, no-show.” The enforcement of such policies can, however, become problematic when the employee’s absence is due to a serious health condition which otherwise qualifies for leave under the Family and Medical Leave Act (FMLA). A Massachusetts Federal District Court recently addressed this issue in the case of Boadi v. Center for Human Development, Inc. The facts presented in that case demonstrate the potential liability for employers under the FMLA that can arise from the rigid application of an attendance policy call-in rule.

During her employment with CHD, Boadi had a history of absenteeism and violations of the company’s attendance policy – including failure to follow the call-in procedure set forth in the policy. She received disciplinary warnings for those multiple violations. In April of 2013, she experienced an unexpected mental health condition for which she was hospitalized for over a week. Her son notified CHD that Boadi was in the hospital, which triggered CHD to prepare an FMLA leave packet. However, CHD terminated Boadi on April 21, 2013 because she violated CHD’s call-in policy by failing to personally contact her supervisors regarding her absence in a timely manner. Boadi subsequently filed suit against CHD alleging that the company interfered with her rights under the FMLA and other laws. CHD filed for summary judgment, arguing that Boadi was terminated for a reason unrelated to her request for FMLA leave; namely, that she had violated CHD’s neutral call-in procedure. The court denied that motion regarding the FMLA claim, holding that whether CHD’s application of its policy interfered with Boadi’s FMLA rights was a question of fact to be determined by a jury.

The law applicable to Boadi’s case is found in Department of Labor Regulations, 29 C.F.R. §825.303(c), which states: “… an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” The Regulations further state that under such a procedure, an employee may be required to contact “a specific individual to request leave.” Applying these Regulations, the court determined that there was an issue of fact regarding whether “unusual circumstances” had prevented Boadi from complying with CHD’s call-in policy while she was hospitalized. CHD argued that Boadi could have called her supervisor from the hospital. However, the court noted Boadi’s allegations that she was unable to make that call herself due to her incapacity while in the hospital. Based upon these conflicting factual allegations, the court concluded that it could not grant summary judgment in favor of CHD.

The Boadi case reflects the tension that can arise between an employee’s FMLA leave rights and the employer’s right to establish procedural requirements for employees to give notice of absences. While DOL Regulations permit employers covered by the FMLA to establish such rules, their application should allow for consideration of “unusual circumstances” which might justify exceptions. Such flexibility may help to avoid liability under the FMLA. When in doubt, employers should consult with experienced employment counsel.

Physical Address: 301 S. College Street, Suite 2900, Charlotte, NC 28202

related information

what's new at the firm

Poyner Spruill Continues Growth, Welcomes Five New Attorneys

9/14/2017

RALEIGH, SEPTEMBER 14, 2017 – Poyner Spruill, a commercial law firm with offices across the state, is pleased to announce Dylan Castellino, Kate Dewberry, Cheslie Kryst, and Hannah Munn have joined the firm as associates, and Emily Meeker has joined as Of Counsel.

In fond memory of Howard Chalk Broughton, devoted member of the Poyner Spruill family for twelve years

9/1/2017

McIntyre Leadership Challenge Excites, Ignites, and Inspires Youth

7/12/2017

Mike McIntyre recently announced at the NC Bar Association Annual Meeting, his new Youth Leadership Challenge. The Youth Leadership program will provide opportunities for civic engagement to High School students and community leadership.

Webinar: ERISA Fiduciaries, Data Privacy and Cybersecurity Risks: HIPAA, HITECH, and ERISA Preemption of State Data Breach Laws

6/20/2017

This CLE webinar will provide guidance to employee benefits counsel on trends in data breaches for ERISA healthcare and retirement plans, lessons from recent BCBS/Anthem litigation, ERISA fiduciary obligations, ERISA preemption of state data breach laws, and contractual risk mitigation with third-party administrators (TPAs).

Poyner Spruill Attorneys Honored by Chambers USA in Seven Practice Areas

6/2/2017

RALEIGH - Chambers USA: America's Leading Lawyers for Business has ranked seven practice areas and sixteen Poyner Spruill LLP attorneys as leaders in their respective fields. Poyner Spruill received rankings, which identify the firm as a leader in North Carolina, for outstanding work in the following practice areas: