The FMLA does not prohibit employers from terminating employees who fail to comply with an internal company policy that requires employees to call-in when they will be absent. The fact that the absence may be covered by the FMLA does not abrogate the right of employers to know whether their employees will be coming to work on a particular day.
The FMLA requires employees whose need for leave is not foreseeable to notify their employer that they need leave "as soon as practicable." An employer's policy that requires an employee to call in to work and provide advance notice of the need for leave is consistent with the FMLA where advance notice is reasonable under the circumstances. As such, an employee could terminate an employee for violation of that policy and such termination would not violate the FMLA.
The issue was recently addressed in Knox v. Cessna Aircraft Co., No. 4:05-CV-131(HL), 2007 U.S. Dist. LEXIS 71528 (M.D. Ga. Sept. 26, 2007). In rejecting the employee's argument that enforcement of the "no call, no show" policy violated the FMLA, the court opined:
If this Court accepted Plaintiff's position, employers would be severely disadvantaged because they would be prohibited from requiring employees to give advance notice of their absences, even when they are capable of giving advance notice. Without advance notice that an employee will be absent, employers are unable to make arrangements to have somebody else fill in for the absent employee. See Spraggins, 401 F. Supp. 2d at 1239. Because FMLA allows employers to require that their employees call-in their absences, this Court finds that Defendant is entitled to rely on its "no call, no show" policy as a basis for Plaintiff's termination.
Comment: A majority of courts have found that the FMLA does not prohibit an employer from disciplining employees for violation of employer attendance policies, at least where application of those policies do not conflict with the FMLA. For example, an employer could discipline an employee for violation of a "no call, no show" policy that required the employee to give advance notice of the need for leave that was not foreseeable "as soon as practicable," if the employee were able to do so. In that case, the employee would also lose entitlement to FMLA leave because they did not provide notice of the need for leave "as soon as practicable" as required by the FMLA.
Conversely, if the employee was not able to give advance notice of the need for leave under the circumstances, an employer would violate the FMLA were it to discipline the employee for violating the "no call, no show" policy.
The above rule should apply to civil service employees covered by the OPM FMLA regulations.