Supreme Court declined to hear employee’s FMLA retaliation case


Employee’s unplanned, frequent leave was at issue

Under the company policy, repeated absences, failing to notify a supervisor of an absence, and unauthorized absences without approved leave are grounds for termination. Attendance points would be applied and too many such points led to termination.

Ella was aware of the policy. She took FMLA leave for her serious health condition, but she also missed work without indicating that it was for her condition. She also failed to inform the appropriate individuals of some absences. For all those absences, attendance points were assessed.

Eventually, Ella assessed enough points to be fired, and she was. Because of this, she sued.

In her claim, Ella alleged that her employer interfered with her FMLA leave benefits by assessing unexcused absence points when she was entitled to take FMLA leave and discriminated and retaliated against her for seeking and taking FMLA benefits, for which she was wrongly fired.

Both the trial court agreed with the employer, indicating that assessing unexcused absence points was justified because Ella:

  • Failed to give required FMLA notification — She did not appropriately notify both her supervisor and HR about all her absences.
  • Sought FMLA leave beyond what her doctor certified — When Ella requested extra leave, the requested recertification simply referred to the previous certification, which did not support the additional leave. The company was not required to request another recertification at that point.
  • Sought FMLA leave for medical conditions unrelated to her condition. Ella failed to specifically reference either the qualifying reason for leave or the need for FMLA leave. She mentioned symptoms that did not appear to be related to her FMLA-qualifying condition.

The case went to the Supreme Court and on January 10, 2022, the High Court decided not to take it up. Therefore, the Appeals court ruling stands.

Employers can benefit from having well communicated call-in policies and hold employees to them. Employees are to provide enough information to let employers know whether an absence qualifies for FMLA protections. If not, the employer may deny the FMLA protections for an absence.

Evans v. Cooperative Response Center, Inc., 595 U.S., 21-671, January 10, 2022.

Key to remember

Employees that need frequent leave must still comply with company call-in policies. Many FMLA cases make it to appellate courts, few are heard by the Supreme Court.

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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