FMLA guidelines for communication on FMLA leave

by on January 26, 2009 · 1 Comment POSTED IN: HR Info Center

Call-in policy can’t discriminate among those out under Family Medical Leave

Chalk one up for sanity in FMLA guidelines: A federal court just reaffirmed your right to demand that employees out on FMLA leave stay in touch.

In this case, out of Minnesota, the court rejected an employee’s claim that her employer broke the law by firing her while she was on FMLA leave. Yes, the employee was fired while on leave, the court said, but she wasn’t fired because of her leave. She was fired, the court ruled, because she violated the company’s attendance policy.


The policy required people missing work due to health problems to either provide a tentative return date, or call in daily. Because this employee’s return-to-work date was uncertain, she was supposed to call in. But for three successive days, she did not call. The employer told her she was deemed to have resigned, per its policy. The employee filed suit under FMLA law citing interference, but the court refused to let the case go to a jury, a victory for the company. Here’s the key principle on which the case turned: If an employer would have fired an employee anyway, whether or not he/she was on FMLA medical leave, the termination is legal.


You don’t have to accept that when employees are on FMLA medical leave, they can just disappear. You can require that they contact you on a regular schedule – as long as you have a policy requiring all employees who are ill to do so, whether they’re on FMLA or not. Also, you must apply your policy in agreement with FMLA guidelines. In other words, you can’t insist that some FMLA leavetakers call in while you relax the policy for others.

Cite: Bacon v. Hennepin County Med. Center, No. 06-CV-2359, D. Minn., 12/11/07.

1 Comment on This Post

  1. July 7, 2016 - 2:00 pm

    We have an employee who suffered a stroke while at home and has used all his vacation/sick leave. He has been in the hospital for over 1 month and is still there. He is expected to be out for 2-4 months and we can’t afford to continue to pay his wages. The employee is a good worker and has been with us for over 15 years and we do plan to have him back once he is well.

    My question is what can we do for him? Is there a social services department in Harlingen, TX that I can contact to see if they can assist him financially ?

    Any help would be greatly appreciated. We are small family owned business and do not have an H/R department.

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