How Late Reporting Can Kill An FMLA Claim
Medical leave using the Family and Medical Leave Act (“FMLA”) can be a lifeline when an employee is sick, caring for a family member, or dealing with a serious medical issue. It lets employees keep their jobs while they handle health problems that do not politely wait for weekends.
But FMLA leave still has rules.
Employees have to report FMLA related absences the right way. They have to follow call-in procedures. They have to notify the right people. And when approved medical leave ends, they have to return to work unless they have properly secured more protected leave.
That is where employees can get tripped up. Some employees assume that because they were approved for intermittent FMLA once, every later absence is automatically protected. Not so. Intermittent FMLA leave is not a blank check. It has to be used and reported correctly.
In Chitwood v. Ascension Health Alliance, 168 F.4th 493 (7th Cir. 2026), Elizabeth Chitwood worked as a human resources specialist for Ascension. In July 2021, Ascension approved Chitwood for intermittent FMLA leave for migraines. Ascension required her to report intermittent FMLA leave to Sedgwick, its third-party leave administrator, on “the same day the absence occurs” and to notify her supervisor “as soon as practicable.”
Later, Chitwood received continuous FMLA leave to care for her son from August 31 through November 3, 2021. When that continuous leave ended, Ascension told her at least three times to return to work on November 15. Ascension also warned that if she did not return, she would be fired.
Chitwood did not return. Instead, on November 15, she left a voicemail on Ascension’s attendance line saying she could not log into her computer and assumed she had been terminated. She thanked Ascension for the opportunity and said she planned to return company property. Ascension fired her later that day for “Leave Exhaust/Failure to Return to Work.”
The next day, Chitwood tried to report intermittent FMLA leave for November 11, 12, and 15. Ascension rejected the requests because she had already been terminated.
The United States Court of Appeals for the Seventh Circuit affirmed summary judgment for Ascension. The Seventh Circuit Court of Appeals held that Chitwood failed to show Ascension denied FMLA leave to which she was entitled or fired her for legitimate use of FMLA leave.
Legal Takeaway:
FMLA protects eligible medical leave, but employees must follow the employer’s notice rules for intermittent FMLA leave and must return to work when approved leave ends unless they have properly secured additional protected leave. Late reporting, retroactive requests, and failure to return can defeat FMLA interference, FMLA retaliation, employment law, and wrongful termination claims.
Do I Have To Report Intermittent FMLA Leave The Same Day?
Maybe. It depends on the employer’s policy and what is practicable under the facts. But if the employer has a same-day reporting rule for intermittent FMLA leave, employees should treat that rule like it matters because courts often do.
Chitwood had already been approved for intermittent FMLA leave for migraines. That approval mattered, but it did not eliminate her reporting obligations. Ascension’s policy required Chitwood to report intermittent FMLA leave usage to Sedgwick on “the same day the absence occurs” and to notify her supervisor of FMLA time “as soon as practicable.” Chitwood, 168 F.4th at 496.
The Seventh Circuit Court of Appeals held that 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 employer’s usual notice requirements. Id. at 498. The Seventh Circuit Court of Appeals also held that failing to follow regulatory and workplace notice requirements can defeat an FMLA interference claim. Id.
That is where Chitwood ran into trouble. On November 15, she called Ascension’s attendance line. So she could communicate with the employer that day. But she did not say she was taking intermittent FMLA leave. Instead, she said she assumed she had been terminated, thanked Ascension for the opportunity, and said she intended to return company property. She waited until November 16, after she was fired, to report intermittent FMLA leave for November 11, 12, and 15.
That was too late.
The Seventh Circuit Court of Appeals held that no reasonable jury could find the notice requirements satisfied because nothing in the record showed Chitwood was unable to report the absences the same day they occurred. Id. at 498. Her ability to call the attendance line on November 15 made the late reporting harder to defend.
The lesson is simple. Approval for intermittent FMLA leave is not the same as properly using intermittent FMLA leave. Employees still have to report the absence the way the employer’s policy requires unless there is a real reason they could not do so.
Practical Tip: If you have intermittent FMLA leave, save the approval paperwork, know exactly who you must contact, and report each FMLA absence as early as possible—preferably the same day—because late reporting can turn a protected medical leave absence into an attendance problem.
Best FMLA Attorney Blogs on Point:
Can My Employer Fire Me For Failure To Return After FMLA Leave?
Yes. If approved FMLA leave ends and the employee does not return to work, the employer can usually treat that as a serious attendance problem unless the employee has properly requested and secured more protected leave.
That is what hurt Chitwood. Her continuous FMLA leave ended on November 3. Ascension instructed her at least three times to return to work on November 15 and warned her that failure to return would result in termination. She did not return.
Ascension fired Chitwood later that day for “Leave Exhaust/Failure to Return to Work.” Chitwood, 168 F.4th at 497. The next day, she tried to report intermittent FMLA leave for November 11, 12, and 15. But by then, Ascension had already terminated her.
The Seventh Circuit Court of Appeals held that Chitwood’s FMLA interference claim failed because she was no longer employed when she tried to retroactively report those absences. Id. The Seventh Circuit Court of Appeals also held that Chitwood was not denied FMLA benefits to which she was entitled because the employer had already terminated her before she attempted to invoke FMLA for those days. Id.
That is the clean employment law point: FMLA protects leave that is properly requested and used. It does not let an employee skip work after approved medical leave ends, ignore return-to-work instructions, and then ask for FMLA coverage after termination.
An employee who needs more medical leave should request it before the current leave expires, follow the employer’s process, and keep written proof. Waiting until after the employer fires the employee is how a possible FMLA issue becomes a lost wrongful termination claim.
Practical Tip: If your approved FMLA leave is ending and you still cannot return to work, ask for additional leave before the return date, document the request, and follow every reporting rule because failure to return can give the employer a legitimate reason to fire you.
Best Medical Leave from Work Lawyer Blogs on Point:
What Evidence Proves FMLA Retaliation After Medical Leave?
FMLA retaliation requires more than “I used FMLA, and then my employer fired me.” Timing can matter, but timing alone does not win the case if the employer has a clean, documented reason for termination.
Chitwood argued that Ascension retaliated against her for using FMLA leave. But the Seventh Circuit Court of Appeals held that the record showed something else: Ascension fired her because she failed to return to work after her continuous FMLA leave ended. Chitwood, 168 F.4th at 499.
Chitwood pointed to internal emails discussing her FMLA use. One employee wrote that if Sedgwick denied her leave, Ascension would “move to term if she does not RTW,” and another stated that Chitwood appeared to be using FMLA for herself, her son, and her daughter, perhaps trying to make “at least one of them stick.” Id. at 499–500.
Those emails were not great for the employer. A good FMLA attorney would absolutely look at them. They may not have been enough to win summary judgment, but they still had settlement value. A smart employee-side lawyer would use them to push resolution and remind the employer that trial risk, expense, and uncertainty are real even when liability is disputed.
But the Seventh Circuit Court of Appeals held that, at most, the emails showed an honest suspicion that Chitwood was abusing FMLA leave. Id. at 500. The Court held that the FMLA does not protect employees from discipline for abusing FMLA rights. Id.
That is the difference between suspicious evidence and winning evidence. To prove FMLA retaliation, an employee needs evidence that the employer fired the employee because of protected FMLA use—not because the employee failed to return to work, failed to follow notice rules, or used medical leave improperly.
The best employment lawyer will look for the proof that closes that gap: shifting explanations, hostile comments about medical leave, uneven discipline, stronger treatment of employees who did not use FMLA, ignored doctor notes, manipulated attendance records, or evidence that the return-to-work reason was false.
Chitwood did not have enough of that. Ascension’s reason stayed simple: she exhausted leave and failed to return. The Seventh Circuit Court of Appeals held that “the simple story is the one borne out by the evidence here.” Id. at 500.
Best Wrongful Termination Law Firm Blogs on Point:
Practical Tip: If you believe you were wrongfully fired after FMLA or medical leave, preserve emails, texts, call logs, leave approvals, doctor notes, return-to-work instructions, and attendance records, because retaliation claims usually turn on whether the employer’s stated reason is real or just cover for punishing protected leave use.
Who Is The Best FMLA Lawyer If My Employer Fired Me After Medical Leave?
If your employer fired you after FMLA or medical leave, the best employment lawyer will not stop at the termination notice. The real work is in the timeline. When did approved leave end? What did the employer require for intermittent FMLA reporting? Did the employee follow the call-in rules? Did the employer accept late reports before? Did managers make comments suggesting frustration with medical leave? Did the stated reason shift? Those are employment law questions that can decide whether the employee was wrongfully fired.
Spitz, The Employee’s Law Firm knows how to pressure-test FMLA cases before the employer turns “failure to return” into the whole story. Spitz helps employees who were wrongfully fired, denied protected leave, punished for intermittent FMLA, accused of abusing medical leave, or targeted by disability discrimination tied to medical absences. The best attorney does not just say the firing was unfair; the best lawyer builds the evidence, uses bad employer emails as leverage, and pushes for settlement when the employer faces real litigation risk. If your employer fired you after medical leave or rejected your FMLA request, call Spitz for a free initial consultation.
FAQ
What Is Intermittent FMLA?
Intermittent FMLA is protected leave taken in separate blocks of time instead of one continuous stretch. For example, an employee may use intermittent FMLA for migraine flare-ups, medical appointments, recurring treatments, or periodic symptoms from a serious health condition. But intermittent FMLA still has rules: the employee must follow the employer’s reporting procedures and give notice as soon as practicable.
When Do I Have To Report Intermittent FMLA Leave?
You should report intermittent FMLA leave as soon as practicable and within your employer’s usual call-in or reporting rules. If your employer requires same-day reporting, treat that rule seriously unless there is a real reason you cannot comply.
Can I Report Intermittent FMLA Leave After I Am Fired?
Usually, no. If the employer already terminated the employee before the employee tries to report intermittent FMLA leave, the employee may no longer be entitled to FMLA benefits for those absences. That can make a later claim for discrimination, FMLA interference, or wrongful termination much harder.
Can My Employer Fire Me For Not Returning After FMLA Leave Ends?
Yes. If approved FMLA or medical leave ends and the employee does not return to work or properly secure more protected leave, the employer may have a legitimate reason to terminate employment. That is why employees should request more medical leave before the return date whenever possible.
What Evidence Helps Prove FMLA Retaliation?
Useful evidence can include emails criticizing FMLA use, shifting explanations, uneven discipline, call logs, leave approvals, doctor notes, return-to-work instructions, and proof that the employer treated employees who did not use FMLA more favorably. This is the kind of evidence an employment law attorney will examine to determine whether the employee was wrongfully fired.
Employment Lawyer Disclaimer
This employee rights and employment law blog about FMLA, intermittent FMLA, medical leave, late reporting, discrimination, failure to return to work, wrongful termination, and being wrongfully fired is for general information only and is not legal advice. Every employee’s situation is different, especially when the facts involve call-in rules, leave approvals, attendance policies, return-to-work instructions, retroactive leave requests, employer emails about protected leave, or possible disability discrimination. If you believe your employer denied FMLA leave, punished you for taking medical leave, refused intermittent leave, discriminated against you, or fired you after protected leave, consult a qualified employment lawyer about your specific facts, deadlines, evidence, damages, and legal options. This blog is a legal advertisement. Reading it does not create an attorney-client relationship with Spitz, The Employee’s Law Firm, any Spitz attorney, or any Spitz lawyer unless and until a written agreement is signed.