Labor & Employment Developments Blog

In a ruling that bolsters employers’ established FMLA leave notice requirements, the Sixth Circuit affirmed the district court’s decision granting summary judgment in favor of the employer and upheld a former employee’s discharge for failure to follow the call-in requirements of his employer’s attendance policy in White v. Dana Light Axle Manufacturing, LLC.  The decision is assuring to employers who have established and adhere to FMLA leave policies that require employees follow specific procedures to notify their employers of their intent to take protected FMLA leave.

Relying upon 29 CFR §825.302(d), the Court held that an employer may enforce its usual and customary notice and procedural requirements against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee’s failure to comply with the employer’s requirements. 

The Court rejected the former employee’s allegation that his employer interfered with his rights under the FMLA by imposing and enforcing its own internal notice requirements when those requirements went beyond the bare minimum that would generally be sufficient under the FMLA to constitute proper notice.  It was undisputed that the employee failed to report to work or call in pursuant to the employer’s no-fault attendance policy, and failure to do so was a basis for denying an employee’s taking FMLA protected leave.  The former employee produced no evidence demonstrating any type of “unusual circumstances” that would have justified his failure to follow the call-in requirements of his employer’s attendance policy.  And there was also no evidence that the employer waived these requirements for him. 

Notably, former Sixth Circuit precedent did not permit employers to limit an employee’s FMLA rights if an employee failed to comply with procedure requirements more stringent than the statute.  However, this Court ruled that the 2003 decision of Cavin v Honda of America Manufacturing, Inc was abrogated due to the material revisions to  29 CFR §825.302(d).  These revisions expressly allow an employer to condition FMLA-protected leave upon that employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances.