Dismissal for Not Calling In Doesn’t Violate FMLA

By James Denis

Apr. 2, 2009

In summer 2003, Melondy Bacon, a janitor at the Hennepin County Medical Center, began to break out in hives while at work. After suffering an outbreak of hives in July 2004, Bacon obtained a doctor note stating that she had a serious health condition and that she would need to take intermittent leave each time she had an outbreak. Bacon submitted the requisite Family and Medical Leave Act forms to her supervisor.

Following the July 2004 outbreak, Bacon called in to work, reporting that she would be absent. The hospital’s employee handbook requires employees who are on indefinite sick leave to call in absences every workday. The policy states that employees need not call in every day if the expected length of the absence is documented. Starting August 5, Bacon stopped calling in her absences, and on August 11 the hospital sent her a letter notifying her that it deemed her to have resigned.

In June 2006, Bacon sued the hospital in the U.S. District Court for the District of Minnesota, claiming she had been fired in violation of the FMLA. The court found in favor of the hospital, finding that it was entitled to fire her for violating its call-in policy. Bacon appealed.

Affirming the court’s decision, the Minneapolis-based U.S. Court of Appeals for the 8th Circuit agreed that the hospital’s call-in policy was permissible under applicable regulations; that Bacon signed an acknowledgment that the hospital’s policies apply to employees absences; and that although Bacon’s discharge interfered with her FMLA rights, Bacon was terminated to for failing to comply with the call-in policy, and that she would have been terminated for doing so irrespective of whether these absences were related to FMLA leave. Bacon v. Hennepin County Medical Center, 8th Cir., No. 08-1168, (12/22/08).

Impact: Employers should be cautious when considering applying leave-of-absence procedures and policies to employees approved for FMLA leave.

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