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Employers can require employees to follow call-in procedures to report or request absences even if the employees have been approved for Family and Medical Leave Act (FMLA) leave, said Julie Lucht, an attorney with Perkins Coie in Seattle, on Nov. 18 at the National Employment Law Institute Employment Law Conference in Washington, D.C.
This is true even in situations involving intermittent FMLA leave and is an effective way to curb abuse, she noted.
For example, a plaintiff-electrician in Acker v. General Motors, No. 4:15-CV-706-A (N.D. Texas 2016), had iron-deficiency anemia, which sometimes prevented him from performing his job. General Motors' FMLA policy required employees to notify the employer of a request for FMLA leave by calling two lines: an absence line and a benefits and services line.
[SHRM members-only toolkit: Managing Family and Medical Leave]
The electrician acknowledged that he knew the process, having requested intermittent leave often due to his serious health condition. After he failed to follow the request process and call the two lines for several absences, General Motors denied him FMLA leave and placed him on unpaid disciplinary suspension.
He sued, claiming that the employer interfered with his FMLA rights. But the court ruled in favor of General Motors, deciding the company could require employees to call two lines.
"Carefully document expectations about call-in," Lucht said. She emphasized that the same requirements should be applied to all similarly situated employees. If supervisors adopt ad hoc policies, employers may not be allowed to enforce their written call-in procedures, she cautioned.
Give employees something in writing about the call-in procedures, Lucht said, and require them to talk live to someone. Some employees want to text that they will be out and not speak with anyone. If they have to talk to someone, they're less likely to abuse intermittent leave, she said.
Usual and customary notice and procedural requirements may mandate:
Department of Labor (DOL) regulations allow an employer to require employees to comply with the employer's notice requirements absent unusual circumstances, Lucht emphasized.
Suppose the employer's policy states that requests for leave must be made by contacting a specific number. An unusual circumstance would be if no one answered the call-in number and the voice mail box was full.
Asleep on the Job
An employee might violate call-in procedures if he or she suddenly is unavailable while at work.
Lucht highlighted a case involving an employer that lawfully disciplined an employee for violating its call-in procedures when her migraines or medications caused her to sleep on the job.
In Lasher v. Medina Hospital, 2016 WL 455642 (N.D. Ohio 2016), a nurse had chronic migraines nearly every day. Sometimes the nurse needed to stay home due to the pain; when she did not follow hospital policy in requesting her absences, she received progressive discipline.
The employee sometimes disappeared from her unit and slept in the call room during her shift. HR spoke with her to see if she needed accommodations and gave her paperwork for her health care provider to fill out if she needed FMLA leave. The nurse requested and was approved for intermittent FMLA leave.
One night during her shift, she took her medications and later slept. The nurse never informed anyone she had a migraine or needed to take leave. The hospital fired her for sleeping on the job.
The nurse sued, claiming interference with her FMLA rights and retaliation.
The court ruled in favor of the hospital, observing that she did not give notice of her intent to take intermittent leave. Nor was the reason for firing her—sleeping on the job—pretext for retaliation, the court found.
Use of the DOL's medical certification forms WH380E and WH380F also can help curb intermittent leave abuse, Lucht said.
The forms asks whether the employee will need to attend appointments or work on a reduced schedule because of the medical condition.
However, sometimes doctors do not fill out the forms correctly or legibly. If that's the case, she said, employers should "go back for clarification."
Employers can provide attendance records to physicians and ask if they are consistent with an employee's serious health condition, she noted. A doctor might say there's no reason for an employee to be out three consecutive Fridays, for example. In such instances, a new certification might be needed or the absences simply may not be covered by the FMLA.
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