Under the FMLA rules, an employer may require employees seeking FMLA leave to comply with its “usual and customary notice and procedural requirements for requesting leave,” except in “unusual circumstances” that prevent the employee from doing so. A recent decision by a federal district court in Tennessee demonstrates how this provision can be exceedingly useful to employers in managing FMLA leave.

The Facts

Amy Ritenour worked for the Tennessee Department of Human Services, initially as an interim employee and subsequently as a full-time clerk. Ritenour was a mother of three children, all with special needs. Under DHS policy, employees were required to personally contact her supervisor each day that she was absent to explain the reason for her absence. Employees who failed to do so for three consecutive work days were subject to termination for job abandonment.

By mid-August 2008, Ritenour had exhausted all of her annual sick leave. One of her children’s conditions worsened, such that she felt that she needed to stay home with him. While Ritenour claimed that she informed all of the supervisors in her chain in command  about her children’s conditions and about her specific need for leave in September 2008, DHS disputed whether Ritenour requested unpaid FMLA leave to care for her son.

What was not disputed, however, is that Ritenour was absent on September 22, 23, 24 and 25, 2008, and that she did not contact her supervisor on those dates as required by DHS’s general policy on absenteeism. Consequently, DHS terminated Ritenour’s employment for job abandonment effective September 25, 2008.

The Lawsuit

Ritenour filed suit in federal district court, claiming that she was entitled to FMLA leave for her absences in September 2008, and that DHS violated the FMLA by firing her for those absences. DHS filed a motion for summary judgment. Granting that motion, the court noted that Ritenour very well might have been entitled to take FMLA leave for her absences on September 22, 23, 24 and 25. However, it found that DHS was within its rights to terminate her employment, because even if her leave qualified as FMLA leave, Ritenour was still required to comply with DHS’s “usual and customary” procedures for reporting absences. DHS terminated Ritenour’s employment, according to the court, not because she used FMLA leave, but because she violated established policy.

Insights for Employers

  1. This case provides a clear example of why it pays to have clear, written absence reporting policies. When an employee requests leave, it is almost always a good idea to remind them of the applicable policies in writing, to avoid any later claim that they were unaware of the requirements.
  2. Consistent enforcement is also important. This case could well have had a different result if Ritenour had been able to show that DHS only selectively enforced its absence reporting and job abandonment policies.
  3. Remember that the FMLA rules require employers to make exceptions to their policies for “unusual circumstances” that prevent an employee from reporting an absence in the usual manner. Consequently, before terminating an employee, it is important to consider whether any such exception might be warranted.