When They Need to Take FMLA Leave, Who Should Workers Tell?

Allen Smith, J.D. By Allen Smith, J.D. November 19, 2019
When They Need to Take FMLA Leave, Who Should Workers Tell?

​Employees must notify employers of their need to take time off under the Family and Medical Leave Act (FMLA) when such leave is foreseeable, but who exactly should they tell? Their supervisor? HR? A third-party administrator (TPA)? Multiple people? The answer may depend partly on when the leave is requested (e.g., initial notice versus subsequent time off) and can vary from organization to organization. 

Every company is different when it comes to employees' FMLA notice requirements, said Marie LaMarche, SHRM-SCP, division director of labor relations with CHI Franciscan Health in Tacoma, Wash. Some require notice to managers. In other cases, "sometimes privacy concerns by an employee necessitate a policy that bypasses management and the employee reports to HR," she said. "Larger employers may require notification to a third-party leave administrator."

Supervisors need training that prepares them to recognize a request for FMLA leave and then alert HR, legal experts say.

Supervisors also need to be trained to tell HR if workers mention that they have chronic conditions such as arthritis, asthma or depression, because these conditions could qualify for FMLA leave, said Scott Macdonald, Esq., SHRM-SCP, a senior HR management consultant with The Human Resource Consortium in New Haven, Conn.

Advantages to requiring initial notice to HR include being able to route the requests through a centralized process and using professionals who understand the law. But even when a company has a policy requiring employees to notify HR about foreseeable FMLA leave—such as to care for a covered family member having surgery—and the worker instead tells a supervisor, that request may put the employer on notice about FMLA leave.

Joan Casciari, an attorney with Seyfarth in Chicago, recalled one instance when a worker informed a manager about needing FMLA time off and was told to contact HR but didn't. The worker ultimately was disciplined for taking the time off. In its review of the worker's complaint, the Department of Labor (DOL) found that the company had notice of the FMLA leave, despite the worker not following the company's policy. "I think this is contrary to the regulation, but it shows that DOL takes a very employee-friendly view of notice," Casciari said.

Outsourced Absence Management

"It's important to distinguish between notice for the initial leave versus notice when an employee previously certified to take FMLA [leave] needs time off on an intermittent or unplanned basis," Casciari said.

"In the first instance, notice is generally given to HR. In the second, the employee is expected to follow the usual call-off procedures, such as calling the supervisor one hour before the start of the scheduled shift to indicate he or she is off for an FMLA reason. If there is a TPA, the employee is also required to notify the TPA but may have more time to do so."

"Employers that outsource their absence management typically require employees to notify their manager before they are going to be absent, and also to notify the outsourced absence management provider" if they want the absence protected as FMLA intermittent leave, said Marjory Robertson, assistant vice president and senior counsel for Sun Life in Wellesley Hills, Mass.

This dual call-in requirement can help minimize FMLA abuse, she said. Employees who abuse FMLA intermittent leave are less likely to also call the TPA to say that an absence is FMLA-related, she noted.

"If the employer has a written and well-communicated call-in requirement that the employee fails to follow, that absence may not be subject to the FMLA job protections and the employer may be able to discipline and/or terminate the employee," Robertson said.

Macdonald noted that reliance on a TPA doesn't absolve a company of liability. Employers that are notified about foreseeable FMLA leave and deny time off that should count as FMLA leave may face a claim of FMLA interference.

[SHRM members-only toolkit: Managing Family and Medical Leave]

Clear Communication

Employers that adopt dual call-in requirements need to clearly communicate that requirement and enforce it consistently, Robertson said.

Notice about call-in procedures should be included in the employer's handbook as well as in written communications to workers about FMLA leave, she added.

Employees often say they were not aware they had to call an outsourced provider in addition to their manager. Employers that can show they had reminded workers in writing of the call-in requirements or that employees had previously taken FMLA leave and followed the dual call-in requirement should prevail if there are legal challenges, according to Robertson.

Make sure employees have access to an employer's written call-in requirements. "In a recent case where a fast-food franchise had a dual call-in requirement in its handbook, the employee presented evidence that the handbook was only maintained online and she did not have access to a computer," Robertson said.

Don't fire a worker the first time he or she violates call-in rules, she cautioned. An employer should instead notify the employee in writing that further failures to follow the call-in requirement may lead to termination. 



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