Dive Brief:

• A Pennsylvania hospital did not violate the Family and Medical Leave Act (FMLA) when it fired an administrative secretary who failed to comply with its policy for requesting and reporting leave, the 3rd U.S. Circuit Court of Appeals ruled (Soutner v. Penn State Health, No. 20-1763 (3rd Cir., Jan. 13, 2021)).
• Penn State Health fired the secretary because she had accumulated too many unscheduled absences. She contended the absences were protected leave under the FMLA, the Americans with Disabilities Act and Pennsylvania law. The hospital required employees to approve and document FMLA absences by requesting an absence through a third-party administrator and flagging it through a designated "call-off" line. The plaintiff requested and was approved for FMLA for several days over one year, but she failed to report the absences.
• The district court held that the plaintiff's failure to comply with the hospital's absence-reporting policy defeated her claims. The appeals court affirmed. An employee must comply with the employer's requirement for requesting leave unless those requirements conflict with the FMLA, the court said. An employer's policy requiring an employee on approved FMLA leave to call in sick during work hours and report the absence does not conflict with the FMLA, the court said. "An employer generally does not violate the FMLA if it terminates an employee for failing to comply with a policy requiring notice of absences, even if the absences that the employee failed to report were protected by the FMLA," it contined, referencing a 2011 case from the 10th Circuit.

Dive Insight:

This case illustrates that employers generally are free to require that employees follow certain call-out procedures. 

HR can design and communicate call-out policies but may need to ensure they are clearly spelled out. Uncertainty over the FMLA call-out process allowed a Walmart employee's suit to be revived after the 9th Circuit found that "confusion existed about having to notify one company of her workers' compensation claim and her request for leave by having to contact two different departments within the same company." The court said a question remained "regarding whether [she] failed to comply with the policy and procedures for requesting leave, and whether such policies were ambiguous."

Jeff Nowak, now a shareholder at Litter, previously told HR Dive that FMLA regulations allow employers to require that employees follow the employer's usual and customary call-in procedures for reporting an FMLA absence.

However, at least one court has held that an employer cannot deny FMLA leave based on FMLA-specific notice requirements that outdo the employer's requirements for other types of leave. The parties eventually settled and Nowak noted on his FMLA Insights blog that employers shouldn't put too much weight on the court's decision.