Employer's Daily Call-In Policy Found Not To Violate FMLA

Court Holds Policy Was Consistently Applied To All Leaves Of Absence

A federal appellate court recently upheld summary judgment in favor of an employer who discharged an employee for failing to follow a company policy requiring employees to call in each day during an extended absence. This ruling is notable because the employee previously had been granted leave under the FMLA. Bacon v. Hennepin County Medical Center, No. 08-1237, Eighth Circuit Court of Appeals (December 22, 2008).

Factual Background

Melondy Bacon was employed as a janitor by Hennepin County Medical Center (HCMC). In the summer of 2003, Bacon began to periodically break out in hives while at work. On July 8, 2004, she experienced an outbreak. That same day, Bacon obtained paperwork from HCMC for a leave of absence under the Family and Medical Leave Act (FMLA).

On July 14, Bacon visited her primary care physician, who completed the FMLA medical certification form. According to the doctor’s report, Bacon needed to take intermittent leave for a chronic skin irritation caused by chemicals at work. While the doctor was unable to specify the duration of the necessary intermittent leave, she predicted that Bacon would need treatment approximately once each month, and that 24 hours would be needed for recovery from such treatment. It is undisputed that Bacon’s medical documentation neither specified the length of time during which she would need intermittent leave nor provided a return-to-work date. Bacon submitted the paperwork to her supervisor, telling him that she was going to be on extended leave of absence until she could get an appointment with an allergist.

During the following month, Bacon called HCMC each day on which she was scheduled to work, reporting that she had not yet seen the allergist, and that she would be absent on that particular day. Her absences were recorded by HCMC as FMLA-related.

Bacon called in pursuant to HCMC’s policy, which requires an employee on indefinite sick leave to call in every day to report an absence. Under the company’s policy, an employee need not call in her absences if she “has provided [her] supervisor with written documentation specifying length of absence, including tentative date for return to work.”

On August 5, 2004, Bacon stopped calling in to report her absences. On August 11, Bacon’s employment was terminated under a provision of the applicable union contract which states that three consecutive days of absence without notice is considered to be a resignation of employment.

Bacon filed for unemployment benefits, explaining that her failure to continue calling in came after she “received information on the federal guidelines for FMLA which did not require any call ins.” Bacon then sued HCMC, claiming that the company interfered with her rights under the FMLA by terminating her employment.

Legal Analysis

The trial judge granted summary judgment in favor of HCMC. According to the trial judge, Bacon was entitled to FMLA leave at the time HCMC fired her because she had a serious health condition and was incapacitated from the July 8 hives outbreak until August 11, the date of her termination. Nonetheless, the trial judge found that HCMC was entitled to discharge Bacon for violating its call-in policy. Bacon appealed this decision to the Eighth Circuit Court of Appeals.

On appeal, the Eighth Circuit affirmed the trial judge’s ruling. According to the court, an employer that takes adverse action against an employee who is exercising his or her FMLA rights will not be held liable if the employer can prove that it would have made the same decision had the employee not exercised those rights. “Because Bacon was terminated for failing to comply with HCMC’s call-in policy, and she would have been terminated for doing so irrespective of whether these absences were related to FMLA leave,” the Eighth Circuit found, “the [trial judge] correctly held she did not state an interference claim under the FMLA.”

Practical Impact

According to Patrick Hulla, a shareholder in the firm’s Kansas City office: “The Bacon opinion underscores the importance of communication between employers and employees. The Eighth Circuit has basically affirmed that employers have the right to information about employees’ medical condition and how their conditions may impact their attendance. It also confirms that employees who exercise their rights under the FMLA may be held to the same standards as those who do not. Because HCMC had written policies that were consistently enforced, it was able to show that the call-in procedure applied to all extended absences, whether or not FMLA-related, and was able to prove that it did not single out Bacon for disciplinary action because she was on FMLA leave.”

Note: This article was published in the January/February 2009 issue of The Employment Law Authority.