Intermittent leave continues to pose some of the most vexing Family and Medical Leave Act problems for employers. Employees eligible for intermittent FMLA leave frequently miss work without advance notice, leaving the employer to scramble to cover their work. In its last revision of FMLA regulations, the Department of Justice handed employers a small victory by agreeing that employees using FMLA leave must generally abide by the company’s established procedures for notifying the employer of their need to be away from work. Earlier this month, in an unpublished decision, the Third Circuit Court of Appeals demonstrated how an employer can effectively manage and discipline an employee who fails to follow these notification procedures when claiming the need to be away from work for FMLA reasons.

In Beese v. Meridian Health Systems, Inc., the plaintiff missed work and failed to call in within two hours as stated in the employer’s disciplinary policy. He later received a second disciplinary notice while absent from work on extended FMLA leave, following a prior incident involving unacceptable job performance. The cumulative points generated by these incidents exceeded the maximum allowed under the policy, and the employer immediately terminated the plaintiff upon his return from FMLA leave. He sued, claiming retaliation and interference with his exercise of FMLA rights.

The Third Circuit affirmed dismissal of the claim on summary judgment. In terms of the failure to provide notice, the employer demonstrated consistent application of this policy and the lack of any discretion on the part of the supervisor to excuse failure to meet this requirement. The employer’s business reasons for the second disciplinary action were uncontroverted, and the defendant demonstrated a policy of waiting until employees return from leave before taking action with regard to such disciplinary matters.

The employer prevailed in this case because it demonstrated consistency of treatment of employees whether on FMLA leave or not, and clear documentation of performance issues that led to the disciplinary action. The employer held the plaintiff to rules of conduct and standards of performance applicable to all employees. The Third Circuit was not swayed by the mere fact that these violations occurred during the time that the plaintiff took FMLA leave. With good HR practices in place, employers can manage employees with performance problems unrelated to their need for leave despite their protected status under the FMLA.