Employee’s Termination for Failing to Report for Work Not a Violation of Federal FMLA

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February 10, 2009

In a recent case, Phillips v. Mathews, 547 F.3d 905 (8th Cir. 2008), the Eighth Circuit Court of Appeals ruled that an employer did not violate the federal Family and Medical Leave Act (FMLA) when it terminated an employee after she failed to show up for work, even though the employer had sufficient notice that the employee may have had a serious health condition under the law.
Jamila Phillips began working for the State of Arkansas in 2004. She was transferred to the Department of Arkansas Heritage two years later to answer the telephone and greet visitors. During her first week, she was reprimanded twice, once for making too many personal telephone calls and once for failing to be cordial to guests and employees.
Soon after her transfer, Phillips was involved in a car accident. She informed her supervisor of the accident the same day. She went to the emergency room but declined a doctor’s excuse to take a few days off from work and instead went to work at mid-day.
Two days later, Phillips scheduled an appointment with her doctor for the following week. She discussed the appointment with her supervisor. Phillips and her supervisor agreed that she would report for work in the morning before her doctor’s appointment, and then take an early lunch so she could see her doctor and use the least amount of leave without pay. During this discussion, the supervisor mentioned that Phillips may need time off for physical therapy and suggested the possibility of Phillips taking FMLA leave. The supervisor gave her FMLA paperwork.
On the morning of her doctor appointment, Phillips’ car would not start. She called her employer and told another employee that her uncle would help her fix the car. Once that was accomplished, she went to see her doctor. Her doctor recommended that she take a few days off work for physical therapy and completed her FMLA paperwork for her.
When Phillips reported to work, she was given a letter of termination. The termination letter stated Phillips was terminated because she did not report to work until after her doctor’s appointment and “leave without pay is very serious issue and is not to be used because an automobile won’t start.” Phillips was not permitted to submit her FMLA medical certification or inform her employer of her need for FMLA leave.
Phillips sued her employer. She argued that her employer violated the FMLA by interfering with her FMLA leave rights and retaliated against her by terminating her. The employer argued that it lacked notice of Phillips’ need for leave. The employer also argued it terminated Phillips for reasons independent of the FMLA. The Court of Appeals ruled that Phillips had provided her employer with sufficient information of her need for FMLA leave. The Court noted that Phillips and her supervisor discussed the possibility that she might need time off for physical therapy and that Phillips’ supervisor even gave her the FMLA paperwork to complete before she saw her doctor. Thus, even though the employer did not know before Phillips’ appointment that she would definitely need FMLA time off, it did know of the possibility. As such, the Court ruled that the notice requirement was met. However, the Court ruled that Phillips’ FMLA interference claim failed because there was no evidence that she was terminated for a reason related to her need for FMLA leave. The Court noted that she was terminated because she did not show up at work before her doctor appointment, as had been agreed to. In this matter, the employer prevailed based upon the fact that it had a legitimate non-FMLA related reason for terminating the employee. However, employers should exercise extreme caution when considering the termination of an employee who is on or who is about to take FMLA leave. The recent revisions to the FMLA regulations now provide increased damages where violations are found. If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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