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Employer Attendance Policies Must Comply with Protected Leave Laws

Regular and predictable attendance is an essential function of most jobs, and many employers have policies in place to help ensure employees meet this basic requirement.  This is especially so as to absences where no advance notice is provided as these can be more disruptive to the workplace than where advance notice is provided.  Such policies are generally permissible but must not conflict with employees’ right to absences under statutes such as the federal Family and Medical Leave Act (FMLA) and its state counterpart, the Washington Family Leave Act (WFLA). The Washington Court of Appeals (Division III) recently addressed this issue in Espindola v. Apple King, 430 P.3d 663 (2018).

Maria Espindola worked for Apple King, a fruit warehouse and packing company.  In May 2011, Apple King instituted a new points-based attendance policy.  Points were assessed for negative attendance incidents, from 2 points for being tardy up to 12 points for a no show, no call incident.  Employees who accrued 24 points within a 12 month period from May through April would be terminated.  Employees did not receive points for missing work due to doctor’s appointments, so long as they provided 24 hours’ notice and proof of the visit. 

Shortly after the policy went into effect, Ms. Espindola discovered she was pregnant.  The pregnancy included certain medical complications.  She had numerous absences for medical reasons, including doctor’s appointments and hospitalization, all of which were excused when she provided advance notice per policy.  She also took about eight weeks of maternity leave without receiving points.  Before and after that leave, however, when she had to leave work early or could not come to work at all due to her medical condition, she was assessed points for being absent without adequate prior notice.  When she reached 28 points her employment was terminated.

Ms. Espindola filed suit against Apple King alleging the company terminated her because she missed work due to serious health conditions.  The lower court dismissed her claims, but Division III reversed.  In so doing, Division III analyzed what type of “adequate notice” an employee must provide when absences are protected under the FMLA/WFLA. 

Division III explained that while an employee generally must comply with an employer’s internal notice procedures for absences, there are certain limits on an employer’s ability to deny FMLA/WFLA leave based on not complying with company policy.  In this case, because Apple King knew Ms. Espindola was pregnant and had related medical complications (e.g., kidney stones), the company was expected to know she might need unexpected medical leave from time to time (e.g., waking up with debilitating kidney stone pain) for which advance notice could not be given.  Apple King’s notice requirement provided no mechanism by which Ms. Espindola could report unforeseeable absences (unless resulting in hospitalization).  As these absences were protected under the FMLA/WFLA, the company’s policy of assigning her points and thus penalizing her when her absences were unforeseeable did not comply with her rights under those statutes. 

This case is a useful reminder to employers that while they can have attendance policies that include notice requirements such policies must align with rather than frustrate an employee’s right to protected leave under the FMLA/WFLA.

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