By Robert Meyer – March 28, 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.