In Bacon v. Hennipin County Medical Center, the federal Eighth Circuit Court of Appeals (covering Midwestern states including Minnesota) ruled that a Minneapolis hospital properly discharged a janitor while she was on FMLA leave because she violated a policy that required employees to call in daily to report an absence. Bacon submitted a medical certification for intermittent leave related to a serious chronic allergy condition. The hospital’s employee handbook and the collective bargaining agreement included a call-in policy that required employees on FMLA leave either to submit medical documentation with a definite return-to-work date or to call in daily to report absences. The hospital’s FMLA request form required employees to acknowledge that an FMLA leave did not change the employer’s leave of absence procedures. For a month following a July illness, Bacon called in every day she was scheduled to work to report that she would be absent. However, starting in August, Bacon failed to call in. After three consecutive workdays without a call, the employer notified her that she was discharged for job abandonment. Affirming a dismissal in the employer’s favor, the court held that the hospital’s call-in policy was lawful, and that the employee handbook and FMLA leave request form provided employees with sufficient notice of the call-in requirement. The court rejected Bacon’s argument, raised for the first time in her deposition, that her supervisor gave her permission to stop calling in on a daily basis.
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