The unpredictability of intermittent leave under the FMLA or the ADA can wreak havoc in the workplace. Employers may not fully appreciate that they are permitted to require employees to comply with call-in requirements for such absences, and that if an employee does not do so, the law will not protect the absences. Three different federal Circuit Courts of Appeal have recently ruled that employers who outsource their FMLA and other leave management administration to third party providers can require employees to comply with call-in requirements to both the employer and the outsourced absence management administrator.

First, in Perry v. American Red Cross Blood Services, TVA Region (6th Cir. 06/01/16), the Sixth Circuit Court of Appeals concluded that an employee's absences were not protected by the FMLA because the employee had failed to follow call-in procedures that required the employee to notify both the employer and the external absence management provider retained by the employer. The court relied upon FMLA regulations that permit employers to condition FMLA-protected leave upon an employee's compliance with the employer's usual notice and procedural requirements, absent unusual circumstances. Importantly, the court concluded that employers can require employees to provide notice to both the employer itself and its external absence management provider.

Second, in Alexander v. Kellogg USA, Inc. (6th Cir. 1/4/17), the employer had a policy requiring employees to call in to the employer two hours prior to the start of their shift if they were going to absent. The employer also had a policy requiring the employee to report the absence within 48 hours to the outside absence management provider if the employee intended to treat the absence as an FMLA-protected intermittent absence.

The employee had been approved for FMLA intermittent leave. The district court's opinion indicates that the employee successfully followed both procedures and took FMLA intermittent leave on 90 occasions. However, on 4 dates, while he appropriately called the employer to provide at least two hours’ notice, he did not also report the absence to the outsourced FMLA administrator within 48 hours. He claimed that on one of the 4 days, he left an unanswered voice mail with the outside absence management provider. He also asserted that the employer's HR manager "refused" to help him with his FMLA issues. The employee was ultimately terminated for excessive absences under the employer's attendance policy.

The Sixth Circuit Court of Appeals upheld the granting of summary judgment to the employer on the employee's FMLA interference and retaliation claims. As to the interference claim, the court relied on DOL regulations which authorize employers to deny FMLA leave for failure to comply with internal notice requirements "absent unusual circumstances." The court commented that the employee had not offered evidence of unusual circumstances.

As to the retaliation claim, the court concluded that the employee had not "exercised a right under the FMLA" because he failed to follow the procedure for reporting an intermittent FMLA absence to the outside provider. Since he did not request that these absences be approved as intermittent FMLA leave in accordance with the employer's required procedures, he did not, in the court's view, engage in any protected activity that could be the subject of retaliation.

Third, in Duran v. Stock Building Supply West, LLC (9th Cir. 1/12/17), the Ninth Circuit Court of Appeals upheld the granting of summary judgment to an employer on a California Family Rights Act (CFRA) (the CA FMLA) on the ground that the employer had outsourced its absence management administration to a third party, and had advised the employee that to request "any leave" he would need to fill out the employer's LOA form and apply for leave through the third party absence management provider. The employee failed to do so.

Lessons for employers?  A trend seems to be developing in case law protecting employers from FMLA liability if employees do not follow both the employer's call-in requirements and the required procedures for reporting an FMLA-covered absence to an outsourced absence management provider.    Employers may not realize that this is an advantage to outsourcing absence management administration.   To take advantage of that protection, employers should ensure that any such call-in requirements are clearly communicated to employees and consistently enforced.