In Thorton v. Frontier Refining & Marketing, Inc., No. 05-1241-JTM (D.Kan.Sept. 15, 2006), the employer terminated Thorton after his repeated failure to follow established policy to call and let the company know if the employee is not going to be able to start their shift on time. It was undisputed that the last incident prior to his termination Thorton did not report to work or call in his absence. He did not ask for leave nor did he informally request any such leave. He was not at any time under any restrictions on his ability to perform his job. The court observed:
Thorton’s termination does not implicate the FMLA because the termination was unrelated to any request for FMLA leave, but is instead the result of the application of standard company notice of absence policies to an employee with long-standing attendance problems…This is true even if one assumes, as Thorton argues at length, that his absences in March and July 2003 should be considered FMLA. The fact remains that Thorton knew of the company’s notice policy, and failed to comply with it on two separate occasions after the earlier absences. The FMLA does not prevent an employer form enforcing attendance policies such as those governing giving notice, eve if the underlying absence might otherwise be FMLA-qualified leave…
Comment: All federal sector FMLA variants require that an employee request leave in order to invoke their FMLA rights. An employee who does not request leave, directly or indirectly, is not entitled to the protections of the FMLA. Moreover, under all federal sector FMLA variants, federal employers may require an employee to comply with the employer’s usual and customary notice and procedural requirements (although the standard differs somewhat between Title II and Titles I, the CAA, and the PEOAA). Employees who fail to abide by the employer’s “usual and customary” leave procedures may be subject to discipline even if the leave being requested is covered by the FMLA. This reminds us that an employee who exercises FMLA rights is not immune to discipline for violation of employer policies, including leave policies, any more than if the leave was not covered by the FMLA.
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