FMLA Articles

FMLA and the case of the employee’s missing communication


Key to remember: Employees need to talk to employers regarding an extension of leave or they risk their FMLA protections and, therefore, their job.

Applies to: All public employers and private employers with 50 or more employees. 

Impact to customers: Knowing that it can be safe to terminate employees on FMLA leave in certain situations – including an employee not returning from leave without any communication as to why.

Possible impact to JJK products/services: This is a news item, but it may be added to a future 262M update.

After working for the company for several years, Paul began having attendance issues due to his struggle with drug addiction and various mental illnesses. When he returned to work after taking some FMLA leave, he signed a last-chance agreement that indicated he would be terminated if he had two non-FMLA attendance infractions before September 18, 2017.

Paul took more FMLA leave in early January 2017 and was expected to return on February 20. He was reminded of the return date several times. He did not, however, return, nor did he call in his additional absences per his last-chance agreement. On February 22, the third day after Paul was supposed to return to work, the employer double checked that he had not asked for an extension of leave. The next day, Paul was terminated.

He filed a claim, arguing that the employer interfered with his FMLA rights and retaliated against him for taking FMLA leave.

The court, however, did not find Paul’s arguments convincing. It indicated that it was enough that Paul indisputably did not give his employer notice of his intention to extend his FMLA leave before he was terminated on February 23, 2017.

Paul did not communicate with the employer at all between January 20 and February 23, 2017, nor did anyone acting on his behalf. When it made the decision to terminate him, all the employer knew was that Paul had been required to report for work for the three days leading up to his termination but did not do so, nor did he notify the employer that he was unable to do so.

The court found that Paul was not fired because he took FMLA leave, he was fired because he violated the terms of the last-chance agreement by incurring more than two attendance infractions before September 2017. In response, Paul tried to argue that a closeness in time between his taking FMLA leave and the termination can create an inference of causation.

The employer, however provided a legitimate, non-retaliatory reason for terminating Paul, namely his violation of the last-chance agreement. In the end, the court found for the employer.

The FMLA requires quite a bit of conversation between employee and employer. If employees fail to explain their situation to the employer regarding leave, the employees may lose their rights under the FMLA. The employer in this case took the wise step of reminding Paul about his expected return date. The case does not reveal if the company also reminded Paul of the potential consequences for not returning as expected, or not contacting the employer. These steps the employer did take show that the employer provided ample communication and put the ball squarely in the employee’s corner.

Alkins v. The Boeing Company, Third Circuit Court of Appeals, No 20-1233, September 22, 2020.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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