Employee terminated for call-in policy violation despite FMLA leave

Tonya was aware of the company’s attendance policy, including the requirement to call in if she was going to be late or absent. She was expected to call in at least two hours before her shift began, if possible.

Medical episode requiring treatment

On December 20, instead of going to work, Tonya went to a nearby hospital because she was having a diabetic issue. She spent the day receiving treatment. She made calls to her boyfriend and son several times that day, but she did not call work.

When Tonya didn’t show up to work that day, her boss, Cindy, tried to call her, but got no answer. Cindy called Tonya’s son, who indicated that Tonya was at the doctor, and that he had found it difficult to understand Tonya.

Not following company policy

Tonya went home that day and slept for most of the night into the next day. She did not report to work the next day (December 21), and called Cindy about her medical incident. The call, however, was made three hours after her shift was to begin. Tonya also sent Cindy a copy of a doctor’s note excusing her until December 26.

Cindy told other managers about the situation, and they decided to terminate Tonya.

Requesting FMLA leave

The next day (December 22), Tonya asked Cindy about leave under the Family and Medical Leave Act (FMLA), but got no response. She tried again the following day (December 23). On December 24, Tonya sent an updated doctor’s note extending her absence until January 2. A manager tried to call Tonya, but she said she was not well enough to have a work-related conversation.

Tonya was sent a termination letter that cited her failure to follow the company’s notice procedures for December 20 and 21.

Case goes to court

Tonya sued.

In court, the employer argued that Tonya violated company policy as she failed to provide notice as soon as practicable, as she was able to call others, but did not even try to call work. The employer also argued that Tonya was terminated for reasons unrelated to an FMLA request; it terminated Tonya because of its good-faith belief that Tonya violated the attendance policy, not because of the absences themselves.

The court sided with the employer in this case.

Huber v. Westar Foods, Inc., District of Nebraska, No. 8:21-cv-229, January 17, 2023

Key to remember: Employers that can point to attendance policy violations, not FMLA-protected absences, may have a more solid argument in court when defending termination decisions.