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Court Dismisses Employee's Claim for Retroactive FMLA
In Chitwood v. Ascension Health Alliance (7th Cir. 2026), the court upheld termination where the employee failed to follow the employer’s same‑day FMLA notice requirements and did not return to work after her approved leave expired. The court confirmed that untimely, retroactive notice does not trigger FMLA protection and that termination for failure to return—as repeatedly communicated—is a lawful, policy‑based action.
The plaintiff was an HR specialist at a hospital. Plaintiff requested, and was granted, intermittent FMLA leave for her migraines. She was required to report her intermittent FMLA leave usage to her employer's third-party leave administrator on "the same day the absence occurs." She was also required to notify her supervisor of any time taken under the FMLA "as soon as practicable."
Plaintiff also requested, and was granted, continuous leave to care for her son, who had a serious health condition. When the continuous leave expired on November 3, Plaintiff was instructed to return to work. She then applied for a personal leave of absence to cover November 4 through December 1, but that request was denied. November 15 came, and still the plaintiff did not return to work. The employer terminated her later that day, citing the reason as "Leave Exhaust/Failure to Return to Work." On November 16, the day after she was terminated, Plaintiff attempted to retroactively use intermittent FMLA leave for her absences on November 11, 12, and 15, but her employer considered them invalid since she had been terminated the previous day.
Plaintiff sued, alleging interference and retaliation under the FMLA. The district court ruled in the employer's favor, finding that the plaintiff had not reported her absences as soon as practicable, as required by the FMLA regulations and the employer's policy. On appeal, the Seventh Circuit agreed. The Court noted that by the time the plaintiff attempted to retroactively report her absences, she was no longer employed, and thus not denied an FMLA benefit to which she was entitled. The Court further stated that even setting aside the plaintiff's termination, her claim still failed because FMLA regulations require employees to give notice of leave "as soon as practicable under the facts and circumstances of the particular case" and generally ‘within the time prescribed by the employer's usual and customary notice requirements." The employer's policy at issue required the plaintiff to report her intermittent FMLA leave usage on the same day the absence occurs, and to notify her supervisor of her absence as soon as practicable. "Failure to follow the applicable regulatory and workplace requirements for notice can foreclose an FMLA interference claim. No reasonable jury could find that the notice requirements were satisfied here," stated the Court.
Nothing in the record suggested that the plaintiff was unable to report her absences on the same day they occurred, as required by the employer's policy.
Regarding her FMLA retaliation claim, the plaintiff alleged that the employer retaliated against her for using FMLA leave. "That contention is a non-starter as to her November 11, 12, and 15 absences," the Seventh Circuit said, because the employee was terminated before even attempting to invoke FMLA for those days. In the months before that, though, the plaintiff did extensively use both intermittent and continuous FMLA leave. However, the appellate court found that the record was clear that it was the plaintiff's failure to return to work as directed-not her prior use of FMLA leave-that was the cause of her termination. Moreover, after her continuous FMLA leave expired, the plaintiff was informed multiple times that she must return to work on November 15, or else she would be terminated. When she failed to return to work as instructed, she was terminated just as the employer had warned. There was no evidence that, had she simply reported to work as directed, she would have been terminated in retaliation for her legitimate FMLA use.
Brought to you from David Bryce, McGraw Morris Masud.
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