HR Management & Compliance

Disputed Absences Prevent FMLA Victory for Kentucky Employer

A federal court in Kentucky recently ruled that a Kentucky employer must go to trial in a Family and Medical Leave Act (FMLA) case in part because there were disputes over whether an employee was absent and whether he had been given FMLA paperwork at the time of the absences.FMLA


“William” worked for Pella Corporation. In 2005, he had an extended absence, and he called Pella to report his absence every day for several weeks. According to William, after a few weeks, he received papers from the company, filled in some of the information, and had his physician fill in the rest. He testified that he was not aware that the papers were “FMLA paperwork.”

In early June 2014, William suffered a back injury at work. He worked until June 9, but when his pain worsened, he again started calling in daily to report his absence. His absence lasted just over 11 weeks. William claimed that he followed the same process as he had in 2005.

William did not see a physician until June 26. He was diagnosed with “lumbago” and “muscle spasms.” After the visit, he took the physician’s statement to Pella. He was released to return to work on June 30, but he did not report to work at that time.

According to William, he was given a phone number to call to seek short-term disability benefits, but he was given no information or papers on FMLA leave. He also claimed that during a visit with a company representative, he advised Pella that he would be on medication “for the rest of his life.” However, according to the company, William was given an FMLA application package during this visit. He never completed or returned FMLA certification paperwork.

In July, the company advised William that he needed a physician’s release to return to work. He was examined on July 31. The exam included X-rays and resulted in additional diagnoses of arthritis and degenerative disk disease. William was released to return to work on August 4, but he did not report to work until August 26.

When William reported to work, he received two disciplinary notices. One notice advised him that he had failed to report for mandatory overtime on two separate dates during his absence. The second notice stated that he had “excessive absenteeism” from June 9 to June 25. Both notices were “Class 3” disciplinary letters, and a third Class 3 warning within a year would result in termination.

According to Pella, William was absent again on February 4, 5, 6, 9, 10, and 12, 2015, but the absences were not related to illness. The company claimed he called in and asked for vacation time on February 4, 5, and 6, but was given an absenteeism “incident” for failing to ask in advance. According to the company, his absences on February 9 and 10 arose from his truck getting stuck in mud. His February 12 absence was attributed to “personal business.”

Pella claimed William was verbally counseled about absenteeism when he called in on February 10. On February 13, the company met with him to discuss his absences and ask whether there was an “underlying reason” for them. In a letter dated February 12, Pella advised him that he had been issued a Class 3 corrective letter for excessive absenteeism and discharged him for receiving three Class 3 letters in 1 year.

William denied calling in or being absent any day in February other than February 9. He asserted that he was sent home by his supervisor on the other dates because his trainee was doing the work. Likewise, he claimed he did not call in on February 12 because the company suspended him when he called in to report his mud-related absence on February 9.

William’s testimony during unemployment proceedings appeared to indicate that he was absent on February 6 because he was “sick” and “absent due to car trouble.” While payroll records indicated that he had accrued additional absences, the company’s weekly attendance reports showed only an absence on February 7.

William sued, claiming that he was fired in retaliation for seeking FMLA leave and that Pella “interfered” with his right to take FMLA leave. The company asked the court to dismiss the lawsuit. According to Pella, William did not suffer from a “serious health condition” that entitled him to FMLA leave, did not adequately advise the company that he might need FMLA leave, and did not attempt to exercise his FMLA rights. In addition, Pella claimed that William was fired for legitimate non-FMLA-related reasons—i.e., his attendance and disciplinary record.

Court’s Ruling

The court rejected Pella’s arguments and refused to dismiss the lawsuit, sending the case forward for a trial. According to the court, even if the physicians’ statements did not cover all of William’s 2014 absences, his daily calls and explanations of his condition, his statement about the need for medicine “for the rest of his life,” and his doctor’s statements arguably placed Pella on notice to inquire further and provide him with FMLA information for his absences. There was a dispute over whether Pella met that duty.

To the extent William’s 2014 absences contributed to his termination in 2015, the court concluded that a jury needed to hear the evidence and decide which version of events it believed. Likewise, there was a dispute over his February 2015 absences, and even the company’s records could not resolve it. West v. Pella Corporation, Case No. 5:16-CV-154 (W.D. Ky., October 20, 2017).

Bottom Line

The minute details of the FMLA continue to befuddle employers. This case demonstrates the difficulties employers face when attempting to comply with the law. In this case, there was disputed evidence at both the beginning and the end of the process.

The parties disagreed about whether the employee received FMLA paperwork and whether absences legitimately triggered discipline. William’s testimony was inconsistent, and the company’s records contradicted each other about his final absences. While there is no question that the company believed it properly followed its own procedures and the law, its inability to “prove” that William was given FMLA paperwork and the dates of his absences ultimately prevented a pretrial victory. Once again, the legal result demonstrates the need for employers to keep the best records possible.

For more information about this topic, please contact Jim Cockrum, an editor of Kentucky Employment Law Letter, at

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