Case — A few days of employee’s absence could have been FMLA protected

David's employer had an attendance policy under which employees could be terminated for accumulating seven attendance points. Points would be removed after 12 months, and FMLA leave was not counted.

To care for his wife, David took intermittent FMLA leave, but he had also accumulated four attendance points.

Employees who were going to be absent from work had to notify their supervisor as early as possible but no later than an hour before the employee's scheduled shift started. Since David's intermittent need for FMLA need was not always foreseeable, however, he was instructed to notify whichever supervisor was on duty an hour before his shift or, if no one answered the phone, to leave a voice mail message.

After the employer determined that David had accumulated too many attendance points, it fired him. He sued, arguing that some of the absences should have been designated as FMLA leave.

The company argued that some of the leave David took was not eligible leave under the FMLA and, as for leave that was covered by the FMLA, he did not give sufficient notice of his intent to take the FMLA leave.

The court held that a reasonable jury could conclude that the employer interfered with David's use of FMLA leave; specifically, that a jury could conclude that:

• On one particular absence that the employer felt was not for an FMLA-qualifying reason, a spider bite she suffered could have exacerbated David's wife's condition, so leave on that day could have been FMLA leave, and that David's leave was supported by doctor's notes, albeit not specific enough for the employer's liking.
• Before four of his absences, David gave the type of notice that employer required in his circumstances, where his need for intermittent leave could not be predicted, so he was entitled to FMLA leave for his absences, at a minimum, on those four days

Some of his supervisors commented sarcastically that it was nice of him to actually show up to work. Courts do not look kindly upon such behavior, but the employer's HR department provided guidance that they must tolerate David's taking leave under the FMLA, so the court did not focus on this.

In the end, the court did not throw the case out, like the employer wanted, but encouraged the parties to consider additional mediation before they incurred the expense of trial preparation and trial.

In an interesting twist to this case, if the employer had designated the four days as FMLA leave, David would have exhausted his FMLA leave.

David v. North American Lighting, Inc., Southern District of IL, No. 21-cv-1230, February 22, 2023.

Key to Remember: Be careful on how you designate employee absences; be sure they are not protected by the FMLA before you deny them as such.