On August 18, 2009, Downes Fishel received a favorable ruling from the Sixth Circuit Court of Appeals, which covers Ohio.  In an issue of first impression, the Sixth Circuit held that a County’s decision to terminate an employee, in part, for failing to follow the terms of the County’s paid sick leave policy did not constitute an interference with the employee’s FMLA rights.

The employee, who had years of disciplinary issues ultimately resulting in a “last chance agreement” with the County, was advised not to flex his time.  However, the employee continued to flex his time and was in the process of being scheduled for a pre-disciplinary conference when he called-in sick.  Since the employee was unable to provide a return to work date, his supervisor advised him that he would need to call-in daily under the terms of the paid sick leave policy.  His time off was also designated FMLA pending receipt of a medical certification form.  Over a week later, the employee still had not presented a medical certification form and also failed to call-in to report his absence as mandated by the sick leave policy.  The employee was subsequently terminated while on FMLA leave for: (1) failing to call-in his absence as required by the sick leave policy and (2) improperly flexing his work schedule prior to going on FMLA leave.  The employee sued claiming the County interfered with his FMLA rights. 

The trial court found that the County interfered with the FMLA by terminating the employee, in part, for failing to call-in pursuant to the paid sick leave policy.  The County appealed this decision to the Sixth Circuit which reversed the trial court.  The Sixth Circuit held that the call-in procedure of the paid sick leave policy was applicable to all employees regardless of whether their leave is pursuant to the FMLA and was in place to ensure employees do not abuse their paid sick leave.  Citing to the Third Circuit’s decision in Callison v. City of Philadelphia, 430 F.3d 117 (3^rd Cir.  2005), the Sixth Circuit held that “nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.”      

The Sixth Circuit decision clarifies that Ohio employers are permitted to discipline employees for violating the terms of a paid sick leave policy regardless of whether the employees are also utilizing unpaid FMLA at the time.   The case is Allen v. Butler County Commissioners, et al., 07-4320 (6^th Cir, 2009) Downes Fishel attorneys Marc Fishel and Brad Bennett represented the County in this case.  Please contact them if you have any questions or for a copy of the decision.