The U.S. Court of Appeals for the Seventh Circuit recently issued a decision reinforcing that employees must comply with employer notice procedures when requesting leave under the Family and Medical Leave Act (FMLA). The court affirmed summary judgment for the employer and held that an employee could not pursue FMLA interference or retaliation claims after failing to follow the employer’s established call-in procedures and attempting to retroactively apply absences as FMLA-qualifying after her employment ended.

In this case, the plaintiff worked as a human resources specialist. During her employment, she received approval for intermittent FMLA leave related to her own migraines and a subsequent, continuous leave to care for her son.

The employer's policies required employees who used intermittent FMLA leave to comply with specific reporting procedures, including recording a qualified absence on the same day it occurred and notifying their supervisor as soon as practicable.

The plaintiff was instructed to return to work at the conclusion of the continuous leave, but she failed to do so. The company communicated that failure to return could result in termination. The plaintiff did not return to work on the designated date and left a voicemail indicating that she believed her employment had ended. The employer terminated her employment for leave exhaustion and failure to return to work. The following day, the plaintiff attempted to retroactively designate several absences, including those before her termination, as intermittent FMLA leave. However, these leave designations were rejected because her employment had already been terminated.

The employee subsequently filed suit alleging both FMLA interference and FMLA retaliation. The District Court granted the employer summary judgment on both claims, and the plaintiff appealed. The Seventh Circuit affirmed summary judgment in favor of the employer on both claims. 

• No FMLA Interference: The plaintiff claimed that her employer interfered with her entitlement to intermittent FMLA leave because she was unable to designate her absences as intermittent FMLA leave. To establish an FMLA interference claim, an employee must show that the employer denied benefits to which the employee was entitled under the statute. The court concluded that the plaintiff could not make that showing because she failed to comply with the employer’s same-day reporting procedures for intermittent leave and attempted to report the absences only after her employment had ended.
• No FMLA Retaliation: The plaintiff also argued that her termination was retaliation for her prior use of FMLA leave. The court rejected that argument, finding that the record showed a legitimate, non-retaliatory reason for the termination: the employee’s failure to return to work after her approved leave expired. Because the employer consistently communicated its expectation that the employee would return to work and documented her failure to do so, the retaliation claim could not proceed. The court concluded that no reasonable jury could find that the termination was motivated by retaliatory intent.

What This Means for Employers

The decision offers practical lessons for employers administering FMLA leave. FMLA regulations permit employers to require employees to follow their usual and customary notice procedures when requesting leave. Because the employee did not comply with those procedures, the court held that the employer did not deny her any FMLA benefits.

Employers should ensure that their policies articulate the procedures employees must follow when using intermittent FMLA. Employers should also maintain clear communications, leave records, and return-to-work instructions. Employers may take disciplinary action, including termination, when employees fail to comply with established leave procedures, and employees generally cannot cure those failures by retroactively designating leave after their employment has ended.

What Employers Should Consider

The decision highlights the importance of clear leave policies, consistent documentation of communications between employers and employees, and well-documented return-to-work expectations when administering employee leave. Employers should review their FMLA policies to ensure that call-in procedures and reporting requirements are clearly communicated to employees and consistently enforced.