I've been pondering the Sixth Circuit's decision in Allen v. Butler County ever since the court issued it in mid-August. The decision held that the employer did not violate the FMLA when it fired the employee because he failed to comply with a daily call-in requirement while he was on leave and had not provided the employer with a doctor's statement saying when the employee was expected to return to work.
I'm bothered by the decision. I'm not bothered by the holding. I'm bothered by the complexity of the court's reasoning in reaching the conclusion. Expecting employees who are on leave and who have not said when they will (or expect to) return to keep in daily contact with the employer doesn't seem to be onerous. The employee isn't being denied FMLA leave – just being told the conditions expected of him to make sure the leave is valid. Yet, the decision was unpublished, a 2 to 1 split, and the 2-judge majority seemed to say the employer could not fire the employee for having not called-in while on FMLA leave but it could fire him for not calling in while the employee was on sick-leave that ran concurrent with the FMLA leave.
I'll simplify the facts to eliminate some that are unimportant. The employer/county had a sick leave policy that ran concurrent with its FMLA leave. The sick leave policy (which was set forth in the county's union contract) required employees to contact the employer every day they were absent unless the employee was hospitalized or had provided a written doctor's statement saying when the employee was expected to return to work. The employee – who had a history of absences and was on a last chance agreement for other issues - missed work, failed to provide a doctor's note and failed to comply with the daily call-in requirement. He was conditionally certified for FMLA at the time he was fired.
The district court granted summary judgment for the employee reasoning that the county's daily call-in requirement while on sick-leave interfered with the employee's FMLA rights. The court submitted the case to a jury to determine damages. The jury, however, ruled for the county, saying the employee was not entitled to any damages because the employer would have fired the employee anyway, as the employee had failed to comply with a last chance agreement that had nothing to do with his leave. Both sides appealed.
The Sixth Circuit reversed the district court's ruling that the county's call-in policy violated the FMLA. The majority held the daily call-in requirement did not violate the FMLA because the "procedure 'merely sets forth obligations of employees who are on leave, regardless of whether the leave is pursuant to the FMLA.'" Quoting Callison v. City of Philadelphia, 430 F.3d 117, 120 (3d Cir. 2005). The court also cited with approval the holding Gilliam v. U.P.S., 233 F.3d 969 (7th Cir. 2000), that "nothing in the FMLA or the implementing regulations prevents an employer from enforcing a rule requiring employees on FMLA leave to keep the employer informed about the employee's plans."
One judge dissented. While the judge agreed with the majority's decision to reverse summary judgment for the employee, he felt the jury should have decided whether the firing was motivated by the taking of FMLA leave. To this judge, the FMLA and sick leave issues had to be kept separate. There is a question of motive, it seems the judge was saying, anytime an employer does anything more than refuse to grant paid sick leave benefits when the employee does not satisfy the requirements for sick leave.
What tripped up the court were several prior court decisions which had held that, as long as the reason is "unrelated to the employee's exercise of FMLA rights," the employer may refuse to reinstate (or take other adverse action against) an employee who has taken FMLA leave. One illustration of this rule (though by no means the easiest to understand) occurred in a decision I recounted last March, where the employer fired the employee because of misconduct that the employer learned about when the employee had taken FMLA leave. But when the employee fails to comply with reasonable (more on what that means in a moment) notice requirements, it only needlessly complicates things to insist that the reason for firing must be "unrelated" to the exercise of leave. That is splitting a fat hair too finely.
Of course, the FMLA prohibits employers "from discriminating against employees or prospective employees who have used FMLA leave." 29 C.F.R. § 825.220(c). This, the regulation explains, requires equivalent treatment of employees on FMLA leave and other types of leave: "if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave." Id. In this context, the regulation simply means that employers cannot impose more onerous notice conditions on employees for taking FMLA leave than it imposes on other types of leave. So it shouldn't matter that the call-in requirement is part of the sick leave requirement but not part of the FMLA leave requirement; all that should matter is that the conditions for leave do not discriminate against FMLA takers.
The confusion also seems to have been caused by the FMLA regulation that permits paid leave to run concurrent with unpaid leave. Simply, this regulation provided (and still provides in the 2009 FMLA amendments) that the employer may deny paid leave if the employee fails to comply with the "additional requirements" for obtaining paid leave but the employee is still entitled to unpaid FMLA leave. 29 C.F.R. § 825.207(a).
Now, as to the court's decision, it didn't ultimately make a difference that the call-in requirement was an "additional requirement." The county's denial of paid leave was valid and so too was firing the employee for violating the sick-leave requirements (as the court held). What troubles me is whether the call-in requirement was really an "additional requirement" in the first place. If not, then there is no reason to worry about the employer's motive.
Suppose, for the sake of argument, an employer has no "sick leave" policy (paid or unpaid); all it does is fully comply with FMLA requirements. Like Butler County, the employer requires employees to call-in every day until the employee provides a medical note that includes an expected return to work date. To carry the court's reasoning to its logical conclusion, the employer probably violated the FMLA because it would not be able to show its decision was "unrelated" the exercise of FMLA rights. There would be no violation, however, if only the employer had created a piece of paper (identical in substance to its FMLA policy) entitled "Sick Leave Policy." That borders on the ridiculous (to be polite).
What complicates matters is another Sixth Circuit decision, Cavin v. Honda, 346 F.3d 713 (6th Cir. 2003). Honda fired an employee because he did not comply with Honda's leave notification requirements when he missed work for medical reasons. The employee had called in to security (every day) but not to Honda's leave compliance department. The court of appeals invalidated Honda's notice requirement entirely, saying that "employers cannot deny FMLA relief for failure to comply with their internal notice requirements." Under the reasoning in Cavin, any notice requirement other than that allowed by the FMLA regulations (which at the time did not say what notice can be required) would seem to be an "additional requirement." Maybe Honda's notice requirements were too onerous under the circumstances – maybe Honda should have been more flexible and treated the employee's calls to security as adequate notice. That wasn't what the court addressed, however.
Fortunately, the 2009 FMLA regulations change the result in Cavin. Explaining the purpose of the rule change (to 29 C.F.R. § 825.303) the DOL recognized that "call-in procedures are a routine part of many workplaces and are critical to an employer's ability to manage its work force. Adherence to such policies is even more critical when the need for leave is unforeseen." 73 Fed.Reg. 68009 (Nov. 17, 2008). Thus, the "final rule in § 825.303(d) includes the provision that FMLA-protected leave may be delayed or denied when an employee does not comply with the employer's usual notice and procedural requirements and no unusual circumstances justify the failure to comply." This makes the rule on notice for unforeseen leave consistent with the requirements for foreseeable leave. See 29 C.F.R. § 825.302(d).
This doesn't mean that it is open season to create new and onerous requirements or to deny FMLA leave whenever there is a non-compliance. The DOL expects employer policies to be consistent with the principle that when the need for leave is unforeseen, the notice will be provided "as soon as practicable" under the circumstances.
Now that the FMLA regulations permit employers to expect compliance with their usual and customary notice requirements, employers can impose reasonable notice requirements as part of their FMLA without running afoul of the FMLA. Being reasonable and taking into account the individual circumstances ("no unusual circumstances") is the key. If you go overboard in policy or practice you are asking for it.
The same should be true for reasonable "call-in" requirements that take into account the individual circumstances (though this can't be guaranteed as it can take some persuading of even good judges to get them to discard past court holdings). It is one thing to expect to be told (if possible) an expected date the employee should be able to return. But treating every employee who needs FMLA (but has not yet provided medical certification) as if the employee must wear a GPS tracked ankle bracelet is probably not a good idea (exceptional circumstances aside).
Of course, remember that policies (and practices) must not impose more onerous prerequisites for taking FMLA leave than for non-FMLA leave. There are other complications (in the new FMLA regulations) I've not mentioned here so, as always, but especially where the FMLA is involved, consult with qualified counsel before betting the farm.
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