On March 27, 2017, another federal court granted summary judgment to an employer on an FMLA interference claim where the employee failed to notify both her employer and the outsourced absence management provider on a timely basis that an absence from work was intended to be intermittent FMLA leave. The case is McKenzie v. Seneca Foods Corporation (W.D. Wisconsin 3/27/17).

The employee was approved for intermittent leave for Lyme disease. The employer’s FMLA policy required employees to notify both the employer and the external absence management administrator on the same day that the intermittent absence occurred or the next business day. On a number of occasions, the employee notified her employer but did not notify the external absence management provider until days, weeks or months after the absence. The court said that since the employee presented no evidence of unusual circumstances justifying her failure to provide timely notice to the external provider, it was not FMLA interference for the employer to include these absences when assessing “points” for unapproved absences under its attendance policy. The court expressly stated that requiring the employee to notify two individuals – one at the employer and one at the external absence management provider – was a reasonable requirement and did not interfere with employee FMLA rights.

Lessons for employers? Maintaining consistently enforced call-in requirements may help employers gain some control over intermittent FMLA abuse, whether or not they outsource FMLA administration. In this case, the court noted that in the Seventh Circuit, courts have upheld a variety of notice requirements, including (1) requiring employees to complete a specific form or obtain a call-in code number of the phone within 5 days of an absence; (2) requiring an employee to provide their supervisor with a return-to-work date by the third working day of FMLA leave; and (3) requiring an employee to notify employer each day of inability to work. 

The other four cases decided within the last year reaching a similar conclusion are:

1.      Perry v. American Red Cross Blood Services, TVA Region (6th Cir. 06/01/16)  

2.      Duran v. Stock Building Supply West, LLC (9th Cir. 1/12/17)

3.      Alexander v. Kellogg USA, Inc. (6th Cir. 1/4/17)

4.      Scales v. FedEx Ground Package System, Inc. (N.D. Illinois 1/24/17)