Should Employers Let Workers Report FMLA Absences by Text?

 

Allen Smith, J.D. By Allen Smith, J.D. February 14, 2020
LIKE SAVE
sick woman lying on couch looking at cell phone

​Employees, especially younger workers, often prefer texting and e-mailing to calling. So should employers let them text rather than call in when they're off for Family and Medical Leave Act (FMLA) reasons? In some jurisdictions, workers must be allowed this flexibility, but in many other regions, employers may prefer to enforce call-in policies.

Pros of Texting

In addition to being easy for employees, texting offers some advantages for employers as well.

For example, getting a text message or e-mail provides the employer with documentation of the reason for the absence, said Joan Casciari, an attorney with Seyfarth in Chicago. A live call, on the other hand, may result in the supervisor and the employee having different recollections of the conversation.

"Lots of supervisors and managers I work with use text messaging routinely with employees," Casciari said. "Some sick-pay laws, such as Cook County, Illinois' Earned Sick Leave Ordinance, specifically allow employees to communicate via e-mail and text messaging."

Employees may appreciate the ease and speed of reporting offered by electronic communications, said Abigail O'Connell, senior counsel with Sun Life Financial in Wellesley Hills, Mass. Reporting absences by phone can be cumbersome and time-consuming if the employee is required to follow interactive voice-response prompts and wait on hold before leaving a voice mail, she said.

"Electronic communication may be the norm at some employers, particularly where employers have reliable means of tracking and documenting electronic communications so that they can record the time the absence report was made," she added.

Preference for Call-in Policies

On the other hand, some employers prefer and require under their policies that employees call in FMLA absences, said Tamara Devitt, an attorney with Haynes and Boone in Costa Mesa, Calif.

"Primarily, it allows the employer to ask questions the employee may be able to avoid if he or she just sends an e-note," she explained.

This type of live conversation offers a number of benefits.

"Many managers are concerned about excessive absenteeism and prefer to speak with an employee about the reason for the absence in order to help prevent abuse," said Marjory Robertson, assistant vice president and senior counsel at Sun Life Financial in Wellesley Hills, Mass. "Managers also may have questions about the expected duration of the absence or about work-related matters that will be arising on the day of the absence, and a phone call can be a more efficient way to address these issues."

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

Additionally, speaking with a live person ensures that the message was received. Devitt noted that sometimes electronic communications fail, such as when text messages don't go through.

It may be easier to lie in a text or e-mail rather than over the phone, added Kerry Langan, an attorney with Bond, Schoeneck & King in Syracuse, N.Y.

Plus, employees sometimes text or e-mail employers and then when the employers try to reach them to obtain medical certification or recertification, the workers don't respond.

Moreover, documenting and tracking time reporting is a challenge if the report occurs on a platform outside the employer's control, like a text to a manager's personal cellphone, O'Connell said. "The employer is going to need to access absence reporting in order to understand whether it was timely," she explained. "In addition, the employer must ensure it meets [its] responsibilities to recognize requests for FMLA and respond with the employee's rights and eligibility." If the employer doesn't have oversight of the communication platform, it may inadvertently miss FMLA notice obligations, she cautioned.

Make Any Call-in Requirements Reasonable

Employers may adopt reasonable call-in requirements and communicate them to workers, Robertson stated. "The employer also needs to recognize that there may be unusual circumstances that excuse an employee's failure to follow the prescribed call-in requirements."

That said, Devitt remarked that employers should enforce their call-in policies equally for all employees. "If an employer is going to require that employees comply with its call-in policy—and not accept any other form of communication to report absences—then the employer must ensure that its managers and supervisors are following that policy as well."

Anne-Marie Vercruysse Welch, an attorney with Clark Hill in Birmingham, Mich., said she still prefers "a centralized call-in system where the call-taker is trained to write down the exact language the employee used for the call off. I think it helps ward off FMLA misuse" if an employee knows he or she is going to have to provide the reason for an absence on a phone call, she said.

LIKE SAVE

Job Finder

Find an HR Job Near You
Search Jobs

SHRM WEBCASTS

Implementing Assessment Solutions: Candidate Experience, Efficiencies and ROI, Feb. 26, 2 p.m.E/11 a.m.P

Implementing Assessment Solutions: Candidate Experience, Efficiencies and ROI, Feb. 26, 2 p.m.E/11 a.m.P

Register Today

SPONSOR OFFERS

Find the Right Vendor for Your HR Needs

SHRM’s HR Vendor Directory contains over 10,000 companies

Search & Connect

HR Daily Newsletter

News, trends and analysis, as well as breaking news alerts, to help HR professionals do their jobs better each business day.
temp_image