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When "Unusual Circumstances" May Excuse Failure to Call In During FMLA Leave


When it comes to requests for leave under the Family and Medical Leave Act (FMLA), employees may be required to provide their employers with certain notices. For example, if your employer has call-in procedures, you are required to follow those procedures, even if your absence is covered by the FMLA. However, as with most things, there are exceptions. One exception involves “unusual circumstances” which may prevent an employee from providing required notices.

FMLA “unusual circumstances” exception

Under the FMLA regulations, an employee may be excused from providing required notification of the need for FMLA leave when that leave is unforeseeable. The specific regulation provides an “emergency” or “unusual circumstances” exception to the requirement that an employee complies with the employer’s “usual and customary notice” requirements for requesting leave. In a recent case, an employer was denied summary judgment, where it alleged that the employee was terminated for failing to comply with a call-in policy requiring personal notice of absences.

Boadiv. Center for Human Development, Inc.

In this recent case out of Massachusetts, an employee of the Center for Human Development, Inc., began having issues at home that lead to her unexpected hospitalization. Specifically, Boadi became incoherent and began making threats to her neighbors. As a result, her family took her to the emergency room and she was ultimately transferred to a psychiatric facility. The same day she was admitted, her son left a voice mail message informing the program manager that the employee was unable to work because of her hospitalization. However, the employer instructed the son to have the employee contact them directly because his call was not sufficient since his mother was able to communicate.

Manager failed to report the notice of Boadi’s hospitalization

When Boadi failed to show up for work, and her direct supervisor was unable to reach her by phone, the supervisor informed the program manager. However, the manager, inexplicably, failed to mention that she had received notice of Boadi’s hospitalization. Instead, the manager simply made a notation that Boadi was a “no call/no show” for the next three days. In the meantime, the supervisor became concerned and called Boadi’s son, who told her about the hospitalization. When the supervisor mentioned this to the manager, she again refused to disclose that she had also spoken to the son and was aware of Boadi’s hospitalization.

Boadi was deemed by her employer to have resigned

After several days of absence, the program manager informed the program director of Boadi’s absences, indicating that she had not contacted her supervisor. She did not mention that Boadi was hospitalized, but only that her son indicated she was able to communicate. As a result, it was decided that Boadi had voluntarily resigned, based on her failure to comply with the employer’s call-in policy for three consecutive days.

Employer’s notice requirement violated FMLA regulations

In this particular case, the employer’s policy requiring an employee to provide direct notification unless “physically unable to do so” did not comply with the FMLA regulation, which “expressly condones indirect notification when the employee is unable to notify directly.” In Boadi’s case, despite her son’s statement that she was able to communicate, she was considered incapacitated or “functionally impaired.” As a result, direct notification was not an option in her situation. Since her son indirectly notified her employer of her absence, she effectively provided the notice required under the FMLA.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel | King , either online or by calling us at (205) 265-1880.

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