Fine-Tune Call-In Procedures to Reduce FMLA Misuse

Allen Smith, J.D. By Allen Smith, J.D. October 8, 2021
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​Family and Medical Leave Act (FMLA) procedures that clearly outline the information employees must provide when they call in absent can help reduce fraudulent intermittent leave requests. Providing a list of questions to those who answer absent workers' calls also can help weed out spurious leave requests.

"Maintaining effective call-in procedures serves many useful purposes," said Jeff Nowak, an attorney with Littler in Chicago. "They help an employer determine at the earliest instance whether the employee will be reporting to work and whether staffing needs to be shifted to cover an employee's absence. They also require the employee to provide with some specificity the reason for their absence, which will help an employer determine whether the FMLA applies and if the information provided is inconsistent with previous requests for or use of FMLA leave."

Foreseeable vs. Unforeseeable FMLA Leave

Foreseeable FMLA leave, including for planned medical treatment, requires 30 days' advance notice or such notice as is practicable. With unforeseen FMLA leave, notice must be provided as soon as practicable, generally on the same business day the need for leave arises, absent unusual circumstances such as emergency medical treatment.

"The call-in issue relates primarily to unplanned intermittent leave," said Joan Casciari, an attorney with Seyfarth in Chicago. "Requiring calling in for unplanned FMLA leave can minimize employees trying to claim FMLA retroactively or who may try to use it as an excuse for tardiness."

If an employer has clearly communicated call-in procedures—both to report the initial request for FMLA leave and for individual intermittent FMLA absences—untimely reported absence may not be entitled to FMLA protection, said Marjory Robertson, assistant vice president and senior counsel with Sun Life in Wellesley Hills, Mass. The employer's discipline of the employee then can move forward.

Clear Call-In Procedures

FMLA policies and procedures should state that employees are expected to provide the following information when they call in absent, according to Nowak:

  • The specific reason for the absence, with enough information to enable the employer to determine whether the FMLA may apply to the leave request.
  • When the leave will begin and when the employee expects to return to work, including specific dates and times of absence, if known.
  • Contact information for the employee in the event the worker needs to be reached for further information about the absence.
  • If the employee reports the absence late, an explanation as to why he or she could not timely report the absence as required by the call-in procedure.

Nowak said call-in procedures should include:

  • A deadline for the employee to report the absence (e.g., one hour before the shift begins).
  • Contact information for the department to which the employee should report the absence.
  • Guidelines for the information an employee must provide when calling in absent.

It's often helpful for a call-in procedure to require employees to call in as soon as practicable and no later than a reasonable period, often one or two hours, before the shift, said Sarah Platt, an attorney with Ogletree Deakins in Milwaukee. This means that if it is practicable for the employee to call in more than one or two hours before the start of the shift, he or she should do so, she added.

Employers should also clarify how an employee may appropriately let the company know that he or she will be absent, said Nancy Gunzenhauser Popper, an attorney with Epstein Becker Green in New York City.

"Is text OK? What if it goes to voice mail? Who do they call if the manager isn't available? If the policy is clear, there will be fewer questions about how to comply, and it becomes easier to enforce," she said.

List of Questions

Employers should prepare a list of questions to ask employees when they call in an absence. Nowak said these questions should include:

  • What is the reason for the absence?
  • What essential job functions can the employee not perform?
  • Will the employee see a health care provider for the injury or illness?
  • Has the employee previously taken leave for the condition? If so, when?
  • If the employee is calling in late in violation of the call-in policy, when did the employee first learn he or she would need to be absent, and why did he or she not follow the employer's call-in policy?
  • When does the employee expect to return to work?

These questions not only help the employer determine if the FMLA applies but also better inform the employer if it later suspects FMLA misuse, he said.

Dual Call-In Policy

If the employer is large or uses a third-party administrator (TPA), it makes sense for the employer to require that the employee make two calls: one to the direct supervisor and a second to an attendance hotline or TPA, Nowak said.

The first call ensures that the employer can immediately address staffing. The second call goes to someone who can identify the employee's potential need for FMLA leave and identify suspicious circumstances.

"While there is at least one court that has challenged this procedure in particular circumstances, most courts have expressly approved requiring an additional step to report an FMLA absence," Platt said.

"Some companies do not require the TPA to be notified the day of the absence—as a company call-in policy would—but provide a day or so" for the employee to notify the TPA, Casciari said.

"It is not unusual for managers to begin disciplinary procedures against an employee who has had excessive absences, and then have the employee report that the absence was for an FMLA-qualifying reason," Robertson said. "A dual call-in procedure helps avoid surprises like this."

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