Under the Family and Medical Leave Act, employers must provide job-protected leaves of absence to employees for certain qualifying reasons. What happens when the employee has a legitimate FMLA condition, but fails to observe the employer's call-in procedures for informing it of the employee's inability to work? As pointed out in a case from the Eighth Circuit Court of Appeals last month, the employer can take disciplinary action against the employee.

In Chappell v. The Bilco Co., the defendant's attendance policy required employees to call and speak with a supervisor instead of leaving a message when they would be absent from work. The plaintiff missed several days of work due to his mother's hip surgery; however, he only left a message for his supervisor on these days, failing to comply with the terms of the attendance policy. Based on prior non-FMLA absences, these violations exceeded the maximum allowed under the policy, and the defendant terminated the employee. He sued, alleging interference with and retaliation for his exercise of his FMLA rights.

The Eighth Circuit agreed with the employer, affirming dismissal of the claim. The court noted that the FMLA allows employers to discipline employees on FMLA leave who fail to follow call-in procedures. Unless the employee is not medically able to follow the procedure, employers may treat employees who fail to call in the same as they would any other employee who misses work for non-FMLA reasons.

Subsequent to the dates involved in this case, the Department of Labor issued new FMLA rules explicitly confirming this principle. Given the limited alternatives for dealing with employee misuse of intermittent FMLA leave, holding all employees to the terms of a reasonable attendance and call-in policy may be one way to try to address employee abuse.