“Serena is suing us for FMLA retaliation,” said HR Manager Alan Frankel. “She claims that she was let go because she took time off to care for her sick mother.”
“Serena was dismissed because she violated our no call/no show policy,” said Supervisor Margie Brunton.
“Serena says that she only missed work because she was on FMLA leave,” said Alan. “About a week before she allegedly failed to call in, Serena told her supervisor that her mother would be in a life- or-death situation for an infection that required surgery. She said she’d need to take a week off to care for her mom. Her manager told Serena to take all the time she needed. Nonetheless, she was fired a week after she requested the leave.”
“According to our policy, Serena was obligated to call both HR and her supervisor to request FMLA leave,” said Margie. “The problem was, Serena told only her supervisor about the need for leave. A short time later, she didn’t show up for work and didn’t tell anyone she wasn’t coming in. We were forced to terminate her.”
“Serena says she didn’t know that she needed to contact HR,” said Alan. “She says her supervisor was supposed to tell her that she had to get in touch with HR, but he failed to do so.”
“It was her responsibility to read our employee handbook,” said Margie.
“Serena says we can’t claim she violated a company policy at the same time her manager failed to follow the same policy,” said Nathan.
“We fired Serena for a legitimate reason,” said Margie. “She neglected to comply with our specific FMLA policy rules. We should fight this.”
Did the company win?
No. The company lost. The court ruled that the woman shouldn’t have been fired for violating the employer’s attendance policy because she’d notified her supervisor of the need for FMLA leave.
Although the company said the woman failed to follow its policy and tell HR she was planning to take FMLA leave, the judge noted that the supervisor was obligated under the same policy to advise the woman to contact HR, but the boss failed to do that. The company couldn’t argue that the woman was dismissed for violating a policy when its own manager had also run afoul of the same policy.
The judge also said the company couldn’t maintain a two-step call-in requirement for FMLA leave when it didn’t have a similar policy for other types of time off, such as sick or vacation time.
Plus, the court pointed to the timing of the termination – just a week after the worker requested leave – as potential proof of retaliation.
What it means: Review your employer’s policies
Keep in mind the importance of following your employer’s policies to the letter. In this case, the company lost in court because the supervisor failed to advise the woman to contact HR about the need for FMLA leave.
When a worker comes to you with an accommodation or leave request, be sure to review your employer’s relevant policies before deciding how to proceed.
Based on Moore v. GPS Hospitality Partners IV.
(From the Nov. 8, 2019 issue of HR Manager’s Legal Alert for Supervisors)