CALL ME MAYBE: EMPLOYEES RECEIVING LEAVE UNDER THE FMLA MUST FOLLOW EMPLOYER’S CALL-OFF POLICY

An available, but frequently underutilized, tool for employers combating employee absenteeism – including Family and Medical Leave Act (FMLA) abuse – is the call-off (call-in) policy.  These policies, in whatever their precise form, typically require employees to report off work by a certain time prior to the start of their shift, and/or report to a specific person in a specific manner. 

This seems straightforward enough, but many employers do not realize that even if an employee calls off under previously-approved FMLA leave, the employee still has an obligation to try and follow the employer’s policies.  It’s also true that employees who fail to follow these policies can more easily be disciplined.  

By way of example, the United States Court of Appeals for the Sixth Circuit recently upheld an employee’s termination because the employee did not follow the employer’s call-off policy.  In Srouder v. Dana Light Axle Manufacturing, No. 12-5835 (6th Cir., Aug. 7, 2013), an employer terminated an employee who did not show up to work for two days and did not report off using the employer’s call-in line.  This termination adhered to the employer’s policy which provided that an individual who did not report to work for two or more days and who had not called in would be considered to have voluntarily quit.  

The employee filed a lawsuit claiming that the employer interfered with his use of FMLA leave.  In affirming the termination on appeal, the Sixth Circuit noted that 29 C.F.R. § 825.302(d) provides in part: “Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.”  The Court also added that the 2009 amendments materially altered the FMLA regulations to allow employers to enforce usual notice and procedure requirements. 

Here are some key takeaways for employers who are interested in taking advantage of these rules and doing a better job managing their absenteeism: 

  • Employers should have and consistently enforce a policy requiring employees to notify the employer by a certain time that they will not be available to work. 
  • The policy should be in writing, and it should be specific.
  • The call-off policy should typically be separate from an attendance policy. 
  • Employers should be prepared to consider and accommodate unusual circumstances if presented by the employee as an excuse for not complying with the call-off policy. 

Follow these tips, and dealing with the FMLA may not be as likely to cause you a serious health condition of your own.

Todd Sarver focuses his practice on the representation of management in all aspects of labor and employment law. He has extensive experience representing employers in issues arising under the National Labor Relations Act, as well as in labor arbitrations, work stoppages, injunction proceedings, collective bargaining negotiations, corporate campaigns, unfair labor practice proceedings, labor litigation and bankruptcy proceedings.
 
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