I’ve often wondered — in fact, even discussed with clients — whether an employer could safely approve an employee’s FMLA-related absence and discipline the employee because he failed to timely report the absence.

I’ve theorized that an employer could pull off both because the discipline punished the late call-in, not the FMLA leave.

But I’ve never had a case supporting my wild theory.

Till now.

Let me explain Daphne’s story.

Daphne was a flight attendant who suffered from a chronic vein issue that caused bad circulation, which led to bad swelling and a whole lot of pain. As a result, she sought intermittent FMLA leave when she had flare ups of her condition.

Year after year, Daphne would certify her FMLA leave and she’d take nearly all her leave. Like clockwork.

Then, two things happened:

  1. After Daphne sought a new period of FMLA leave , the airlines recertified her medical condition. Despite ample time to return recertification, Daphne failed to do so, resulting in denial of her FMLA leave for one of her absences.
  2. On still another occasion, Daphne sought intermittent FMLA leave for her condition. When reporting her absence, however, she failed to follow the employer’s call-in procedures requiring employees to report their need for leave at least three hours before a shift.  Despite her tardy call-in, she provided medical certification to support her need for FMLA leave.  As a result, the employer granted Daphne’s FMLA leave request, but disciplined her for failing to follow the three-hour call-in procedure.

Notably, the discipline issued for Daphne’s late call-in was a key component in her eventual termination. Daphne filed an FMLA lawsuit, which promptly was booted by the trial court.  Reed v. Delta Air Lines (pdf)

Insights for Employers

Daphne’s case is helpful to employers in multiple ways:

  • It is yet another reminder that an employee can (and should) be disciplined when they fail to return medical certification (and recertification). Here, despite plenty of time to do so, Daphne failed to return certification supporting her absences. As a result, her FMLA leave was denied, resulting in discipline.  No brainer, but it’s heartening to see a court remain steadfast the principle that FMLA absences must be supported by medical certification.  When the employee fails to meet her obligation, the absence is not protected by FMLA.
  • When an employee calls in an FMLA absence, but fails to follow the call-in procedures, the court here endorsed the employer’s right to designate the absence as FMLA leave, but also to discipline the employee for failing to timely report her absence. As the court noted, the discipline was issued for violating the call-in policy, not as a result of the FMLA leave itself.

This court decision is worth filing away for future use, ey?  Henceforth, this double maneuver shall be called the Daphne discipline.

Use it sometime.