• Employment Law Update: Nothing in the FMLA entitles employees to a variance from neutral company policies or rules.
  • June 7, 2005
  • Law Firm: Dickie, McCamey & Chilcote, P.C. - Pittsburgh Office
  • Although one of the primary purposes of the Family and Medical Leave Act (FMLA) is to "entitle employees to take reasonable leave for medical reasons," the Act also seeks to "balance the demands of the workplace with the needs of families." While employers may not use FMLA leave as a negative factor in employment decisions -- including hiring, firing, promotion, and discipline -- nothing in the Act prevents employers from taking action to ensure that employees do not abuse the leave.

    Recently, the 3d U.S. Circuit Court of Appeals underscored this fact when it upheld summary judgment on behalf of an employer which had imposed unpaid suspensions for an employee's violation of an attendance policy while on FMLA leave. Callison v. City of Philadelphia, 3d Cir., No. 04-2941, May 19, 2005.

    David Callison was employed by the City of Philadelphia as a maintenance technician in the City's Office of Fleet Management. Early in 2000, Callison began to suffer from bouts of anxiety, which caused him to take a significant number of sick days. Because of these absences, the City placed Callison on its "sick abuse list." Once placed on this list, Callison was required to provide medical certification for all sick days, and was subject to progressive discipline for violation of the City's sick leave policies. One such policy required City employees to remain at home during sick leave, except for reasons related to the sickness, and to notify the City's "hotline" when leaving home for any reason during a sick day.

    On January 8, 2001, while on the sick abuse list, Callison took a sick day. On that day, he left his home without informing the City's hotline and was given a warning pursuant to the sick leave policy. From January 24 to April 17, 2001, Callison was out of work on an approved FMLA leave. On two separate days during that period, Callison was not at his home when investigators checked on his whereabouts. On both occasions, Callison failed to notify the hotline. A total of four days of suspension without pay was imposed for the violations, and the suspensions were served by Callison when he returned from his FMLA leave.

    Callison then sued the City, alleging interference with his FMLA rights. Callison claimed that a denial of his FMLA entitlements resulted when the City's sick leave policies were enforced against him while he was on FMLA leave.

    The lower court found in favor of the City, and the 3d Circuit upheld the decision. The Court reasoned that the purpose of the FMLA was not compromised by the sick leave policy because that policy did not prevent or discourage employees from taking FMLA leave. The call-in procedure did not serve as a prerequisite to entitlement to FMLA, but merely established an obligation on the part of an employee on leave whether or not the leave was related to the FMLA. Nothing in the FMLA entitles employees to a variance from neutral rules. Because the City's neutral call-in policy neither conflicted with nor diminished the protections guaranteed by the FMLA, the City did not violate the Act by enforcing the policy.

    This case may have been decided differently had the City put Callison on the sick abuse list based solely upon his FMLA absences. In that circumstance, the City's action may have been viewed as preventing or discouraging employees from applying for FMLA leave and would have conflicted with the Act's substantive provisions. Employers should carefully analyze the impact of seemingly neutral policies to assure that they do not conflict with or impinge upon the substantive rights guaranteed to employees by the FMLA. Failure to do so could lead to an employee's successful claim of interference under the Act.