Viewpoint: Consider a Two-Call Policy for FMLA Leave Requests

 Update: In June 2019, the federal court for the southern district of Alabama ruled against a Burger King franchise that required a two-call policy for requesting leave under the Family and Medical Leave Act (FMLA). Although the decision rested on the specifics of the case and several appellate courts have found a two-call policy to be appropriate in other circumstances (as noted below), employers may want to consider the ruling's implications on their FMLA policies. See Viewpoint: Court Puts Kibosh on Policy Requiring Two Calls to Request FMLA Leave. Employers should not only educate managers about their role and responsibilities under the Family and Medical Leave Act (FMLA) but empower them to play a key role in reducing FMLA abuse.One key change that involves an employer’s FMLA intake process is requiring employees to make two calls to request intermittent FMLA leave-taking—one call to their direct supervisor prior to their shift (so that the shift can be covered), and an additional call to their leave-management department to report the need for FMLA leave. Employers can require that employees make this second call to an employer intake line or a third-party administrator handling calls on the employer’s behalf. If the employee does not make the second call, the leave is not covered by the FMLA, and therefore it is unexcused. [SHRM members-only toolkit: Managing Family and Medical Leave]Why implement this type of dual reporting policy? Employers that have followed this approach often find that a two-call approach reduces FMLA abuse. It also offers protection against FMLA litigation since a number of courts have upheld this approach: Perry v. Am. Red Cross Blood Services, (6th Cir. 2016). Upholding dismissal of FMLA claim where the plaintiff did not call into the employer and the third-party administrator (TPA). Norton v. LTCH, (6th Cir. 2015). The company's policies required that employees on intermittent leave call an FMLA leave contact center before each qualifying absence in addition to a normal call-in procedure. Because the plaintiff failed to make two calls, it doomed his FMLA claim. Szostek v. Drexel University, (3rd Cir. 2015). The employer required that employees notify both the employer and its third-party FMLA administrator of absences for which employees sought FMLA protection. The plaintiff notified the employer, but not the TPA, of such FMLA-related absences; therefore, they were not protected by the FMLA.

• Barnes v. Spirit Aerosystems, (10th Cir. 2013). FMLA claim dismissed because the employee failed to follow the employer's dual reporting call-in procedures. Although he called the employer's attendance line, he failed to request FMLA leave from the company's benefits center. This resulted in an unexcused absence instead of an absence categorized as FMLA leave.
  

Employers should consider implementing this two-call process change. That is, unless they are particularly fond of FMLA abuse.

Jeff Nowak is a shareholder at Littler, an employment and labor law practice representing management, and author of the FMLA Insights blog, where this article originally appeared in a slightly different form. © 2018 Jeff Nowak. All rights reserved. Republished with permission.

Related SHRM Article:

Employee Must Follow Call-In Procedure for FMLA Leave to Be Protected, SHRM Online, July 2018