• Employer Can Enforce Strict Call-In Procedures under 2009 Changes to FMLA, Federal Circuit Court Rules
  • August 15, 2013
  • Law Firm: Jackson Lewis P.C. - White Plains Office
  • An employee who did not follow his employer’s call-in requirements under its attendance policy or provide an appropriate medical certification supporting his need for leave under the federal Family and Medical Leave Act has failed to establish a claim for interference with his FMLA rights, the federal appellate court in Cincinnati has ruled. Srouder, et al. v. Dana Light Axle Mfg, LLC, No. 12-5835 (6th Cir. Aug. 7, 2013). Affirming summary judgment in favor of the employer, the Court ruled that an employer may enforce its customary notice and attendance procedures against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee’s failure to comply with the requirements.


    Assembly worker Matt White worked for Dana Light Axle Manufacturing, LLC, from 2006 to 2009. The company had a no-fault attendance policy providing that “all absences must be phoned into [the number provided] on a daily basis.” In addition, the policy states that “[i]f an individual fails to report to work for two days and has not called in, that person is considered to have voluntarily quit.”

    The company’s FMLA policy required employees to provide 30 days’ advance notice of the need for foreseeable leave and a completed medical certification. Leave could be denied or delayed for failing to comply with the notice or certification requirements.

    In September 2009, White required surgery for a hernia. He called in on September 22, 23, and 24, and returned to work on September 25 to submit his FMLA certification. However, because the certification was incomplete, he was sent home and was told to return on September 28 for a meeting with the human resources manager. Although White was at work on September 28, he failed to attend the meeting, so it was rescheduled for September 30.

    At the September 30 meeting, White submitted a FMLA certification covering his absences on September 22, 23, and 24. The certification included a restriction prohibiting him from lifting more than 20 pounds. There were no positions available to accommodate the restriction, and White was asked to speak to his physician about whether the restriction could be lifted. White was absent on October 1, 2, 5, and 6, but he failed to call in as required by the company’s attendance policy.

    On October 1, the human resources manager sent White a memorandum outlining the deficiencies in his medical certification and gave him until October 7 to correct them. But because White did not return to work and did not call in his absences, the human resources manager sent him a termination letter dated October 6, 2009, pursuant to the attendance policy. On October 7, before receiving the termination letter, White left a revised medical certification on the human resources manager’s desk before he went for surgery. Although he received the termination noticed on October 8, White called in his absences as FMLA leave from October 9 until October 15. He claimed his union steward advised him to do so after he received the termination notice.

     White brought FMLA retaliation and interference claims against the employer, but abandoned his retaliation claim, pursuing only the interference claim. The district court granted the employer’s motion for summary judgment against White, and White appealed. (White originally was joined by another plaintiff, Everett Srouder, who lent his name to the suit’s caption, but Srouder later settled with the employer, so he was not a party on appeal.)

    Applicable Law

    To establish an FMLA interference claim in the Sixth Circuit, the plaintiff must prove: (1) he was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of his intention to take leave; and (5) the employer denied the employee FMLA benefits to which he was entitled. Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005).

    FMLA Revisions Control

    Relying on a 2003 Sixth Circuit decision, Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713 (6th Cir. 2003), White argued that Dana could not impose notice and procedural requirements that were more restrictive than those required by the FMLA. The court in Cavin found a violation based on an FMLA regulation that prohibited employers from denying leave to employees who failed to follow the employer’s internal reporting procedures, provided the employee otherwise gave timely notice of the need for leave.

    But the Sixth Circuit court of appeals noted that regulation was “materially altered” in 2009 when it was amended to allow employers to require employees to comply with the employer’s customary notice and procedural requirements for requesting leave. The 2009 regulation clearly states: “[w]here an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.” 29 C.F.R. § 825.302(d). Based on the changes to the regulation, the Court found Cavin was no longer controlling. Accordingly, the Court held the employer could enforce its attendance policy requiring White to call in if he would be absent. Because White offered no “unusual circumstances” warranting a departure from the policy, his claim failed.


    As noted in the comments accompanying the 2009 amendments to the FMLA regulatory language at issue (29 C.F.R. § 825.302(d)), allowing employers to enforce normal call-in procedures helps avoid duplicative notice policies and allows employers to better manage their workforce and staffing needs. This case is a positive development for employers in the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee), and confirms that employers may require employees — even those seeking FMLA-protected leave — to comply with their customary attendance and procedural requirements for leave, absent unusual circumstances. The Sixth Circuit, however, did not address whether the employee provided sufficient FMLA notice. The regulation at issue also provides that FMLA-protected leave may not be delayed or denied where the employer’s policy requires notice to be given sooner than the regulations otherwise require for foreseeable leave.