Legal Memorandum: Employer's Treatment of Employee's Absence

Issue: Under federal law applying the Family Medical Leave Act, when is an employer justified in treating an absence as non-excused?

Area of Law: Employee Law
Keywords: Employee's absence; Family and Medical Leave Act (FMLA); Non-excused
Jurisdiction: Federal
Cited Cases: 11 F. Supp. 2d 676; 164 F. Supp. 2d 455
Cited Statutes: 29 C.F.R. § 825.302(d); 29 C.F.R. § 305(d)
Date: 03/01/2004

Case law is clear that an employer may not use its leave policies and procedures, including those set forth in a collective bargaining agreement, to contravene the purpose of the FMLA.  And if an employee’s absence is protected by the FMLA, it legally cannot serve as a basis for the decision to terminate him or her.  Barron v. Runyon, 11 F. Supp. 2d 676, 679 (E.D. Va. 1998).  Accord George v. Associated Stationers, 932 F. Supp. 1012, 1018 (N.D. Ohio 1996) (if an employee’s last “occurrence” is due to a serious health condition, the employer may not terminate him or her based on its absenteeism policy).

Section 825.302(d) of 29 C.F.R. says that “failure to follow such internal employer procedures will not permit the employer to disallow or delay an employee[‘s] FMLA leave if the employee gives timely verbal or other notice.”  29 C.F.R. § 825.302(d).  “Simply put, where an employer’s internal policies conflict with the provisions of the FMLA, the FMLA controls and an employee need only comply with the requirements of the Act to invoke its protections.”  Marrero v. Camden County Bd. of Social Servs., 164 F. Supp. 2d 455, 463-64 (D.N.J. 2001).  Thus, for example, in Marrero, the employer’s collective bargaining agreement with the union stated that an employee who took sick leave for more than five consecutive days had to provide a doctor’s certificate.  Id. at 464.  Applying the rule that the employer’s policies […]

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