Question: One of our employees has been absent and late several times without following our call-in requirements. This makes it impossible to find coverage and her manager is understandably frustrated. Yesterday she didn’t show up or contact her manager at all. This morning, she told us she couldn’t call in because she had low blood sugar and needed urgent IV treatment for diabetes. Can we still discipline her for violating the call-in policy?
Answer: Not so fast! Strictly enforcing your call-in policy under these circumstances may lay the groundwork for a claim of interference with leave rights under federal or state leave laws. Generally, supervisors should hold all employees accountable under the attendance policy and issue discipline as warranted. However, your employee’s explanation for why she couldn’t comply with the call-in policy constitutes notice of the need for medical leave due to a serious health condition, which triggers certain legal duties and protections. This is the time to get HR involved. The attendance policy violation needs to take a backseat while you review whether her lack of notice was reasonable under the circumstances and whether it was within the timeframes of any notice requirements for whatever types of protected leave she may be eligible for. (For example, the federal Family and Medical Leave Act (FMLA) requires employees who need unforeseeable leave to provide notice as soon as practicable, while some state leave laws allow notice by the next business day.)
Avoid the “Bad Guy” Role: Prioritize Solutions Over Discipline
Even if you determine that she could have notified you sooner, you may be better off to work out a mutually acceptable approach for future situations rather than disciplining or terminating under these circumstances. Even if you ultimately win a subsequent lawsuit over interference with protected leave rights, the company will still look like the bad guy for denying leave to a seriously ill employee who had a good reason for being a no call/no show. The best course here is to initiate your leave administration procedures, while reminding supervisors and managers to loop in HR on any medical reasons for absences. Also ensure they understand they cannot interfere with or retaliate against an employee who requests or takes protected leave.
Court Rules FMLA Claim Can Proceed After Firing Linked to Medical Absence
The U.S. Eighth Circuit Court of Appeals recently examined similar facts and ruled that a former employee can proceed with an interference claim under the FMLA based on her termination for violating the attendance policy. The employee missed work and failed to call in, later explaining that she suffered a serious diabetic episode and was receiving medical treatment for her condition, which prevented her from calling. She had previously submitted a doctor’s note and requested FMLA for the same condition, which the employer denied. The company fired the employee for failing to notify her supervisor of the absence as required by the attendance policy. The company maintained that the attendance violation was unrelated to her request for leave. The appeals court disagreed, finding that the employee’s medical condition and the attendance violation were connected. The court ruled that a reasonable jury could determine that the employee notified her employer of the need for leave as soon as possible under the circumstances and was entitled to medical leave despite the late notice (Huber v. Westar Foods, Inc., 8th Cir, May 2025).
If you’re uncertain how to assess whether it’s appropriate to excuse an employee’s late call-in, or how to address a situation involving unexpected intermittent medical leave, contact your Vigilant Law Group employment attorney for advice. Also see the Leaves of Absence section of the Vigilant member website for resources and guidance on protected federal and state leaves.
