Posted on 11/01/2017 at 12:00 AM by Mike Staebell
Two recent Wage and Hour Watch blogs discussed several common FMLA issues faced by employers. Those blogs expand on my philosophy of administering FMLA: don’t lose FMLA focus; hold employees accountable; and communicate.
In this blog I will discuss how to handle yet another FMLA issue that calls for ‘holding employees accountable’: the importance and FMLA impact of failing to follow absence and call-in policies.
Many employers have issues with employees on FMLA who do not follow the policies for reporting absences and late arrivals. In those instances, the first thing that should be checked is the actual language of the policy. That way, no one is relying on memory about what the policy says, which may not actually be what the policy says.
Phrases in policies that require a call “as soon as practicable’ or “within a reasonable period of time” of knowing about an absence or tardy are vague and should be avoided. A statement such as “No later than one hour before shift start time” is not open to interpretation, and discipline imposed for failing to meet this requirement policy would be difficult to refute.
Call-in policies should also be specific about who to contact, how to contact that person (phone call, text, email), and what to do if the employee who calls in gets voicemail or can’t leave a message because the voicemail box is full.
Some excuses I have heard for failing to abide by simple and direct absence reporting rules include:
“My medications make it hard for me to wake up in the morning:”
“I was too depressed to call in.”
“I tried a number of times but the phone just rang and rang and it never went to voicemail.”
And the classic, “I just overslept.”
Excuses like this do not hold water under the FMLA, however. Employers may discipline employees for failure to follow generally applicable company policy for reporting absences.
If you contacted a Wage and Hour office today with a question on how to handle this situation, they might tell you that FMLA leave may be “delayed or denied” for failure to follow employer polices on or tardy reporting. That language comes from the FMLA regulations at 825.302(d). But delaying or denying FMLA for failure to follow call-in procedures may result in a claim of FMLA interference. While you can probably defend your actions, why not minimize the odds of having to do so?
To stay out of litigation and avoid a Wage and Hour investigation, a more conservative and practical approach is to keep the FMLA absence and the policy violation separate. Designate the absence as FMLA-covered leave, rather than counting it as an unapproved, unprotected absence. Then, issue the discipline only for violating company call-in policy, making clear the discipline is not for the absence. That way, the risk of an FMLA claim is reduced, and, at the same time, more defendable.
The DOL has provided guidance on this issue that supports discipline for the policy violation:
“Accordingly, as stated in the final rule, where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced.” (emphasis added).
Wage and Hour Administrator’s Opinion Letter FMLA2009-1-A
Assuming employer call-in polices are clear, reasonable, and equally applicable to all forms of leave, employees using FMLA may be disciplined for failure to comply with them. During my years at the Wage and Hour Division, numerous employee complaints were not pursued after it was documented that the employee had been disciplined for failing to follow employer policies, rather than for using FMLA.
Consider this approach as one more tool in your toolbox to keep employees accountable both for FMLA use, and reporting absences and tardies in general.
The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.
- Mike Staebell