FMLA Insights – Good Information for Employers of all Sizes.
In my blog post of 12/10/2020 titled Are Your Telework Policies Ready for the New Year? I mentioned that Jeff Novak is another great employment law resource. Well, Jeff strikes again!
In his latest installment of FMLA Insights: Employers, It’s Time to Update Your Call-in Procedures, he analyzes a recent case in which an employer’s call-in policies helped it defeat an employee’s lawsuit.
Call-in Policies are for Every Employer, Not Just Those Big Enough to be Covered by FMLA.
I’m skipping the case-specific details and going straight to Jeff’s takeaways. I believe they provide a roadmap for every employer to use in implementing or updating call-in procedures:
“This employer win is a reminder to the rest of us:
- Maintain an absence notification policy that requires an employee to call into an actual person or to a call-in line to report their absence and need for leave. Even better, require two calls — one to report the absence generally to the manager, and another to an employer intake line or a third-party administrator handling calls on your behalf. If the employee does not make the second call, the leave is not covered by the FMLA, and therefore, it is unexcused.
- Revise your FMLA policies. Include very clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind. (In your policy, you might also want to include expectations for completing a leave of absence request form, which I also recommend.) My “model” policy provision looks something like this: When you contact Human Resources to report your need for leave, you must provide at least the following information:
► The specific reason for your absence, with sufficient information to allow us to determine whether the FMLA may apply to your request;
► When your leave will begin and when you expect to return to work, including specific dates and times of absences, if known;
► A telephone number where you may be reached for further information
- Set a deadline for the employee to report an absence. But my goodness, set more stringent deadlines than this employer did! For the life of me, I can’t figure out why so many employers give employees such a long time to report their absence. Here, Penn State gave the employee 24 hours to call into its call-in line, then another 15 days to call into its third-party administrator. 15 days!?! Sheesh! Imagine all the things I could do in 15 days? I could go on a two-week beach vacation and still have time to spare before I have to report my absence. I could paint my back deck the color fuchsia 14 different times and still have a day to spare before I have to call in my absence. Really. Why. This. Long? Unless your operations are better off otherwise, set a much tighter time period (e.g., one or two hours before/after the shift starts) for reporting the absence.
- One final thing about your call-in procedures. At the end call-in requirements, make clear that the employee is expected to explain why they could not follow the call-in procedures on occasions when they do not follow them. This protects against an employee claiming in the termination meeting that the absence from three months ago actually was FMLA leave and not unexcused absence for which you are terminating them.
Now would be a good time to review and update all of the policies in your Employee Handbook. Please let me know if you would like help connecting with an employment-savvy attorney in your state.
Please note: the above post contains educational information. It is not intended as legal advice. Engage an attorney who is licensed in your state to get advice on dealing with any specific legal issue.
© 2021 Michael S. Oswald