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FMLA Claims Based On Enforcement of Attendance Policies

Employers who discipline employees for violating attendance policies or who condition employee benefits on perfect attendance often are faced with claims that such actions violate the Family and Medical Leave Act (“FMLA”).1 In many instances, the employee will argue that because the absence qualified for protection under the FMLA, the employer is prohibited from taking adverse actions in retaliation for the exercise of those rights. Human resources managers are sometimes surprised by such claims, particularly where the employee failed to make an advance request for foreseeable FMLA leave or to properly notify the employer that unforeseeable circumstances necessitated a leave.

Cases addressing such fact patterns reflect the difficulty courts have had in assessing the quantum of information that employees are required to communicate to put their employers on notice of an FMLA-protected leave request.2 In this article, we analyze several cases which consider FMLA claims in the context of an employer’s efforts to administer attendance policies.


Enacted on February 5, 1993, the FMLA requires employers with 50 or more employees within a 75-mile radius to provide eligible employees3 with up to 12 weeks of unpaid leave for the birth or adoption of a child or the placement of a child for foster care, or because the employee, or the employee’s spouse, child or parent has a “serious health condition.” 29 C.F.R. § 825.112. During FMLA leave, employers must continue the employee’s health coverage under the employer’s group health plan, 29 C.F.R. § 825.209(a), and, upon completion of FMLA leave, the employer must restore the employee to the same position or an “equivalent” position. 29 C.F.R. § 825.100(c).

In addition, Congress authorized the Labor Department to “prescribe such regulations as are necessary to carry out” the requirements of the FMLA. 29 U.S.C. § 2654. The Labor Department has taken a very expansive view of this rulemaking authority in attempting to apply the FMLA to myriad circumstances not specifically addressed by Congress in the statute. These regulations include requirements that employers provide various types of notice to employees of their rights and responsibilities under the FMLA. For example, when an employee takes FMLA leave, the employer is required to provide written notice to the employee containing, at a minimum, the following information: (i) that leave will be counted against the employee’s 12-week entitlement; (ii) whether the employee will be required to provide medical certification and the consequences of the failure to do so; (iii) the right of the employee or employer to substitute paid leave and any conditions accompanying such substitution; (iv) arrangements for payment of health insurance premiums; (v) whether a fitness for duty certificate will be required; (vi) whether the employee is a “key employee”4 and, if so, the possibility that leave may be denied; (vii) the employee’s entitlement to be restored to the same or equivalent position at the end of the FMLA leave; and (viii) that the employee may be responsible for reimbursing the employer’s portion of health premiums paid on the employee’s behalf if the employee fails to return to work. 29 C.F.R. § 825.301(b)(1). In addition, under these regulations, an employer “cannot use the taking of FMLA leave as a negative factor in . . . hiring, promotions or disciplinary actions; nor can FMLA leave be counted under ‘no fault’ attendance policies.” 29 C.F.R. § 825.220(c).

Under the FMLA, employees are required to provide notice, when possible, at least thirty days in advance for planned medical leave, or for leave that is foreseeable. 29 U.S.C. § 2612(e)(1). See also 29 C.F.R. § 825.302(a). However, in cases where the treatment or reason for qualified FMLA leave is unforeseeable, the regulations only indicate that an employee must notify his or her employer “as soon as practicable.” 29 C.F.R. § 825.303(a). The regulations have interpreted “as soon as practicable” as depending on the facts and circumstances of the particular case, but within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances. 29 C.F.R. § 825.303(a). Ultimately, according to the Labor Department, it is not necessary that an employee mention the statute expressly when communicating his or her need for leave. 29 C.F.R. § 825.302(c). Instead, Labor’s position is that an employee need only give notice that he or she has a qualifying reason for requesting leave. Id. The regulations provide that “[t]he employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken.” Id.

Johnson v. Primerica

Courts have rejected retaliation claims under the FMLA where the employer had no knowledge at the time of the dismissal that the reason for leave was allegedly covered by the FMLA. For example, in Johnson v. Primerica, No. 94 Civ. 4869, 1996 U.S. Dist. LEXIS 869, at *1 (S.D.N.Y. January 30, 1996), Wayne Johnson (“Johnson”) worked as a computer programmer at Smith Barney (“Primerica”) from September 17, 1988 to November 15, 1993. On three consecutive business days starting October 28, 1993, Johnson failed to report to work and provided no explanation for his absence. Upon his return, Johnson verbally indicated to his supervisor that he needed a leave of absence “to help his family start up a family business,” id. at *4, and submitted a written memorandum requesting a month off to attend to a matter of “significant financial importance to [his] immediate and extended family.” Id. Johnson subsequently failed to report to work on November 4, 1993, and on November 5, 1993 was informed that his request for leave was denied. Johnson did not return to work after November 5, 1993, although he did call his secretary on four consecutive business days starting November 8, 1993 to inform her that he would not be reporting to work due to a back problem. After not calling in on November 12, 1993 or November 15, 1993, Primerica terminated Johnson’s employment.

Johnson filed suit alleging that his absences qualified for FMLA protection because he was caring for his ill three year old son, and that his supervisors were aware of his son’s illness. Primerica alleged that Johnson failed to mention any family or medical reasons for his absences, and that he was terminated for exceeding his allotment of vacation, personal, and sick leave, and for failing to notify his supervisors when absent. The court first addressed the threshold question of whether Johnson’s leave request qualified for FMLA protection. After finding evidence lacking on this point, the court then discussed whether Johnson provided sufficient notice to shift the burden to Primerica to inquire further. Using oft-cited language, the court stated that “[w]hile an employer’s duty to inquire may be predicated on statements made by the employee, the employer is not required to be clairvoyant. Johnson simply has not carried his burden of showing that the employer was put on notice of a possible FMLA leave situation.” Id. at *16. The court went on to note that mere employer knowledge of prior medical events is insufficient to impose on the employer a duty to inquire. Ultimately, the court held that Johnson was ineligible for leave under the FMLA.

Barnett v. Revere Smelting & Refining Corp.

By contrast to the facts presented in Johnson, even when the employee fails to put the employer on notice of the FMLA-covered reason for leave, the employee nevertheless may seek to establish notice based on other evidence of the employer’s knowledge of the employee’s medical condition. Based on such facts, courts have denied employers’ motions for summary judgment with respect to employees’ retaliation claims under the FMLA, and have held that the employer had a duty to inquire further before enforcing theabsenteeism policy.

For example, in Barnett v. Revere Smelting & Refining Corp., 67 F. Supp. 2d 378 (S.D.N.Y. 1999) (McMahon, J.), Vincent Barnett (“Barnett”) was employed by Revere Smelting & Refining Corp. (“Revere”) from April 1989 to November 1996. In early 1996, Barnett began to experience a range of symptoms including chest pains, shortness of breath, and fatigue. After being referred to a cardiac specialist by Revere’s staff physician, Barnett was diagnosed with aortic regurgitation and mitral valve prolapse on October 9, 1996. Barnett was placed on medication but was told he could return to work the next day. Barnett told his supervisor about his condition, and allegedly explained that he periodically might be unable to work as a consequence. On the mornings of November 9-10, 1996, allegedly as per company practice, Barnett called Revere’s security guard to explain that he would be unable to work those days due to chest pains and difficulty breathing. Upon his return on November 11, 1996, Revere terminated Barnett’s employment for excessive absenteeism.

Barnett brought an action against Revere alleging violation of the FMLA. In cross-motions for summary judgment, Revere alleged that Barnett failed to provide any documentation concerning his medical condition upon his return to work, while Barnett alleged that such documentation had been submitted. In deciding whether adequate notice was provided, the court stated that “the critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.” Id. at 385. The court found that because Barnett did not specifically reference his medical diagnosis when calling in sick, “the key question in this case is the extent to which Revere’s awareness of Barnett’s condition before November 11 should have put it on notice that Barnett’s November 9 and 10 absences were related to his heart condition.” Id. at 386. The court determined that a question of fact remained as to whether or not Barnett’s prior conversations with his supervisor and the on-site medical staff, in combination with his phone calls to the security guard on the mornings of his absences, were sufficient to shift the burden to Revere to inquire further. Summary judgment was therefore inappropriate on the issue of notice.

Well-Armed Employer

While Johnson holds that “oblique references” to a family member’s illness are insufficient to establish notice of FMLA rights, Barnett suggests that at least one current judge in the Southern District of New York believes that informal knowledge of an employee’s medical condition may be enough for a court to find genuine issues of material fact warranting trial. In Jennings v. Parade Publications, No. 01 Civ. 8590, 2003 U.S. Dist. LEXIS 17088, at *8 (S.D.N.Y. September 30, 2003), the court stated that “the precise contours of what constitutes sufficient notice to shift the burden of inquiry have not been clearly defined by the courts.” While the courts continue to sort out the notice that employees must give to gain the protections of the FMLA, employers should consider prophylactic compliance with the stringent standards imposed by cases such as Barnett.

Employers have at least three options with respect to employee disclosure when crafting policies concerning employee absenteeism: (1) Require employee disclosure in the form of documentation from a medical professional for all health-related absences; (2) Request a general explanation for all employee absences; or (3) Employ a no-fault scheme in which absences are tallied but explanations are neither requested nor recorded. Each of these options brings with it a different level of administrative cost and burden to the employer. The first two options require that the employer not only count absences, but also assign staff to receive and/or file documentation regarding the reasons for employees’ absences. By contrast, companies choosing the third option will incur none of these additional administrative expenses. However, while the first two options ensure notice to the employer of FMLA-covered conditions, the third option leaves it to the employee to trigger the protections of the FMLA.

While the third option is the easiest to administer, it also brings with it the most risk that a disciplinary action may be taken where the employer has no actual notice that the leave is for FMLA-covered reasons. If the rule in Johnson prevails, an employee who has not put the employer on notice that a leave is covered by the FMLA should not be permitted to sustain a retaliation claim. However, to avoid a situation such as the one faced by the employer in Barnett, the employer may wish to interview the employee’s supervisor to ensure that the employer has not been put on notice that the absences were for FMLA-covered reasons.

Whichever type of absenteeism policy an employer chooses, if the employer learns of facts that indicate that the leave may have been for FMLA-covered reasons, the employer should make inquiries concerning the reasons for the leave.

  1. For a summary of the FMLA and analysis of the final regulations promulgated thereunder, see Jeffrey S. Klein and Nicholas J. Pappas, “Analysis of New Family Leave Regulations,” N.Y. L.J., April 3, 1995, at 3.

  2. Kristine C. Karnezis, Adequacy of Notice to Employer of Need for Leave Under Federal Family and Medical Leave Act of 1993, 184 A.L.R. Fed. 171 (2003).

  3. An “eligible employee” means an employee who has been employed for at least 12 months by the employer and who has worked at least 1,250 hours with such employer during the 12-month period immediately preceding the request for leave. 29 U.S.C. § 2611(2)(A).

  4. A “key employee” is one who is among the highest-paid 10 percent of the employer’s salaried employees within 75 miles of the worksite. 29 C.F.R. § 825.217.