Kathleen Bray

An employee had four unexcused absences in April of 2005 as well as two<br />
prior unexcused absences in February of 2005. Under the employer’s<br />
attendance policy, on the “fourth occasion” of an employee’s unexcused<br />
absence from employment, the employee may be terminated. <br />
<br />
The employee in question had not been terminated, but received a demotion. The employee<br />
claimed that the employer both interfered with his FMLA rights but also had<br />
retaliated against such rights. In this case, the Court determined that the<br />
employee, who had been drinking on these occasions, had not given the<br />
employer any reason to believe there was FMLA leave eligibility, as he had<br />
simply called “in sick” and had not referenced any serious illness. <br />
<br />
The Court also called into question the continued validity of the “constructive<br />
notice doctrine,” which states an employee’s inability to communicate his<br />
illness to his employer or clear abnormalities in the employee’s behavior<br />
may constitute constructive notice of a serious health condition. The Court<br />
therefore concluded the employee had not been demoted for absences protected<br />
by FMLA or discriminated against for exercising such non-existent rights, as<br />
no such rights existed. Scobey v. Nucor Steel-Arkansas (8th Cir. 2009).<br />
<br />