HR Management & Compliance

Are Unpaid Disciplinary Suspensions FMLA Interference and Retaliation?

In a recent decision, the U.S. 5th Circuit Court of Appeals—which covers Louisiana, Mississippi, and Texas—addressed claims brought by an automaker’s employee under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).Texas

Specifically, the employee claimed that unpaid disciplinary suspensions imposed by his employer constituted interference and retaliation under the FMLA as well as disability discrimination under the ADA.


In the fall of 2000, “Melvin” began working for GM as an electrician at its automobile plant in Kokomo, Indiana. In the summer of 2014, he voluntarily transferred to the GM assembly plant in Arlington, Texas. Melvin suffers from acute iron-deficiency anemia that sometimes causes him to experience blackouts, “grayouts,” heart palpitations, and fatigue. As a consequence, his physician certified him for intermittent medical leave under the FMLA.

Under GM’s attendance policy, employees must notify the company of absences at least 30 minutes before their shift starts. Failure to call in by the deadline is considered an “instance” under the policy unless the employee can explain the untimeliness to management in a satisfactory manner. When absences are unexcused, GM allocates one vacation hour to the employee for each hour he was absent, up to 8 vacation hours. Melvin testified that he understood the use of vacation time to cover unexcused absences as a “free pass.”

Under the policy, employees are permitted up to five unexcused absences before they become subject to discipline. Using up vacation time for unexcused absences triggers a progressive discipline procedure that moves from two written warnings to unpaid disciplinary suspension to termination.

GM also has a policy for requesting FMLA leave. Employees must make an initial request for FMLA leave from GM’s Benefits & Services Center, which is administered by third-party vendor Sedgwick Claims Management Services, Inc. Once an employee has requested intermittent FMLA leave, Sedgwick sends him a letter reiterating GM’s policy for requesting and taking leave. The policy is described in the letter as follows:

If you have requested intermittent leave, you are required to report any time taken under the [FMLA], at least 30 minutes PRIOR to the start of your normal scheduled work shift, by calling the GM Absence Call[-]In Line . . . and selecting the “FMLA” option when prompted (option #8). You are also required to call the GM Benefits & Services Center . . . by the end of your normally scheduled work shift to report your FMLA absence. When calling, select the prompt for “FMLA.”

Melvin acknowledged that he was familiar with the call-in procedure and had received a packet that included the letter.

By September 2014, Melvin had used all of his “free pass” days. In mid-November 2014, he contacted Sedgwick to request FMLA leave. Sedgwick instructed him to obtain a medical certification by November 28, and he complied. On December 9, Sedgwick notified him that he was approved for intermittent FMLA leave from November 11, 2014, to May 11, 2015. Nevertheless, he began receiving discipline for several unapproved absences under GM’s procedures.

More particularly, Melvin was absent from work on September 29 and received his first written disciplinary warning on October 7. He testified that he didn’t request FMLA leave for the September 29 absence. He was also absent a month later on October 30 and was given a second written warning the next day. He conceded that he didn’t request FMLA leave for that absence, either.

Melvin was absent again on November 12, 13, and 14, and those absences were counted as two instances under GM’s policy. Because he now had five unexcused absences, he was subject to a 2-week unpaid suspension. He eventually contacted Sedgwick to request FMLA leave for the November 12 and 13 absences, and his request was approved.

When GM was made aware of that, it rescinded its disciplinary action for the November 12 and 13 absences. However, because he failed to call in for the November 14 absence 30 minutes before his shift began and missed the FMLA absence call-in time by more than an hour, GM counted the first week of the suspension, which he had already served, as discipline under its policy.

Melvin was also absent on November 22 and 23. His phone records confirmed that none of his calls to GM’s absence line regarding the absences were timely. He was therefore issued another 2-week disciplinary suspension for those unexcused absences.

Melvin was absent again on December 6, 7, and 8. His December 7 absence was approved because he timely called both the GM absence line and the Benefits & Services Center line. Although he did contact the GM absence line for the December 6 and 8 absences, he failed to contact the Benefits & Services Center line in time on both occasions. Thus, on January 14, 2015, he was denied FMLA coverage for both days and issued a 30-day unpaid disciplinary suspension under GM’s policy.

Even though its policy required that Melvin be terminated for the additional unexcused absences, GM retained him and gave him an opportunity to correct his attendance issues. The last disciplinary action the company had to take with respect to his attendance occurred on January 14.

Melvin later testified that since February 2015, he has taken more than 30 days of intermittent FMLA leave and managed to call GM’s absence-reporting lines in a timely manner in accordance with company policy. Nevertheless, he filed suit against GM in September 2015, challenging the unpaid suspensions he was subjected to under the policy. The district court dismissed his claims, and he appealed to the 5th Circuit.

5th Circuit’s Decision

Melvin raised three issues on appeal. First, in support of his FMLA interference claim, he contended that his calls to GM’s absence call-in line and the Benefits & Services Center were sufficient to raise a genuine issue about whether he provided reasonable notice of his need for unplanned FMLA leave.

Second, he claimed that the disciplinary suspensions constituted retaliation for his exercise of FMLA rights. Third, he argued that his request for FMLA leave was also a request for a reasonable accommodation for a disability under the ADA, and the disciplinary suspensions also constituted disability discrimination.

The court noted that to prove an interference claim, an employee must at least show that his employer interfered with, restrained, or denied his exercise of or attempt to exercise FMLA rights and the violation caused him harm. It also noted that while an employee has a right to take leave under the FMLA, he must give his employer notice of his intention to take leave in order to be entitled to it.

When the need for leave is foreseeable, the employee generally must provide the employer at least 30 days’ advance notice before the FMLA leave is to begin. If 30 days’ notice isn’t possible, the employee must provide notice as soon as practicable. The FMLA states that in all cases, the employee must comply with the employer’s usual and customary notice procedure for requesting leave, absent unusual circumstances.

If the employee doesn’t comply with the employer’s usual notice procedure and no unusual circumstances justify his failure to comply, the employer may deny or delay a request for FMLA leave. The court noted that’s true even when the employee’s need for leave is unforeseeable. Therefore, an employer generally doesn’t violate the FMLA if it terminates or disciplines an employee for failing to comply with a policy requiring notice of absences.

The court held that to establish FMLA interference, Melvin had to show that unusual circumstances prevented him from following the policy procedures for each of the absences he claimed were FMLA-qualifying.

Melvin testified that when it’s in the acute phase, his disability causes him to experience severe disorientation, blackouts, grayouts, heart palpitations, and extreme fatigue, and his condition can reach the acute phase quickly and become a sudden medical issue or emergency. However, he offered no evidence that he reached the acute stage or experienced a medical emergency.

The court noted that Melvin didn’t explain why “unusual circumstances” left him capable of calling GM’s absence-reporting line, but not the Benefits & Services Center, on November 22, December 6, and December 8. Thus, the court found there was no proof that unusual circumstances arising from his condition prevented him from complying with GM’s call-in policy.

Melvin argued that an employee’s failure to comply with his employer’s usual and customary procedures cannot be grounds for discipline when the employee provides reasonable notice of an unforeseen absence. The court rejected that argument and his FMLA interference claim based on the plain language of the FMLA regulations, which explicitly allow an employer to delay or deny leave when an employee fails to follow its usual and customary call-in procedures.

To prove his FMLA retaliation claim, Melvin was required to demonstrate that:

  1. He was protected under the FMLA.
  2. He suffered an adverse employment action.
  3. He was treated less favorably than employees who hadn’t requested leave under the FMLA, or the adverse decision was made because he sought protection under the FMLA.

The court held that Melvin hadn’t shown how his disciplinary leave was caused by his attempts to seek protection under the FMLA rather than his failure to follow GM’s attendance and absence approval process. The court noted that he is still employed by GM, he has taken more than 30 days of intermittent FMLA leave since his last disciplinary suspension by following GM’s call-in procedure, and GM’s policy should’ve resulted in his termination for the December 6 absence but the company gave him the opportunity to correct his attendance problems. According to the court, those undisputed facts belie any causal connection between his attempt to seek FMLA leave and his unpaid disciplinary suspension.

Finally, Melvin argued that in disciplining him for violating its call-in procedures, GM failed to accommodate his disability under the ADA by allowing him to take FMLA leave. He contended that although they were made outside the process provided by GM, his requests for FMLA leave were simultaneously requests for a reasonable accommodation under the ADA. Essentially, he argued that because a request for medical leave can be a request for an accommodation in some situations, his requests for FMLA leave should also have been viewed as requests for reasonable accommodation under the ADA.

The court rejected that argument, noting that an employee who requires accommodation for a disability is responsible for requesting a reasonable accommodation. It also noted that the ADA and the FMLA have divergent aims, operate in different ways, and offer different relief. While leave can be considered a reasonable accommodation, FMLA leave, with all of its attendant requirements and protections and eligibility requirements distinct and separate from those of the ADA, is not by default automatically a reasonable accommodation under the ADA.

More specifically, the court pointed out that an employee who requests FMLA leave asserts that he has a serious health condition that makes him unable to perform the functions of his job, whereas a request for a reasonable accommodation under the ADA indicates that the employee can perform the essential functions of his job with or without a reasonable accommodation.

Thus, an employee seeking FMLA leave is, by nature, arguing that he cannot perform the functions of the job, while an employee requesting a reasonable accommodation is communicating that he can perform the essential functions of the job but is just in need of some modification of the job duties.

The court found that Melvin’s ADA claim failed for the same reasons as his FMLA claims: He didn’t follow GM’s absence-reporting procedure, was disciplined, and has successfully followed the absence-reporting procedure since 2015. As a result, the court held that he didn’t prove that GM denied him any accommodation under the ADA. Acker v. General Motors, LLC, 853 F.3d 784 (5th Cir. 2017)


Employers struggle mightily with administering the FMLA. Because of the statute’s numerous and sometimes convoluted requirements as well as the leeway provided to employees, it comes as no surprise that the FMLA is one of the most inadvertently violated federal employment statutes.

Employment lawyers routinely advise employers to minimize their liability by following the procedures for effectively managing employee leave set out in the FMLA regs, such as requesting medical certification and recertification. This case provides an example of another tool for managing FMLA leave, avoiding employee abuse, and minimizing the impact of FMLA leave on your operations: a clearly communicated absence-reporting policy.

Martin J. Regimbal, a shareholder of The Kullman Firm, and an editor of Mississippi Employment Law Letter, can be reached at 662-244-8824 or

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