Employee out on FMLA leave? You can still insist on calling in

February 14, 2011
in Employment Law

Some employees think that once they are approved for FMLA leave, they don’t have to follow the same rules as other employees when they’re away from work. That’s not necessarily true.

In fact, employers are free to create call-in policies that require employees who are going to be absent to phone daily—and they can include employees on FMLA leave in that policy.

The key is to make everyone aware of the policy. The easiest way: Put the call-in policy in the employee handbook, and have every employee sign for his or her copy, acknowledging receipt. In new-employee orientation, be sure to cover absenteeism and your call-in policy.

Then have supervisors follow up with employees when they are planning an absence. That way, employees can’t claim they didn’t know about the policy.

Recent case: Loretta Thompson worked for CenturyTel, a telecommunications company. When she was hired and each year thereafter, she received a copy of the employee handbook and signed for it.

The handbook specified, “unless otherwise directed by the supervisor, employees must call the supervisor each day during a period of absence.” Employees who ignored the rule for three consecutive days or three days in a 12-month period were deemed to have quit.

Thompson went out on FMLA leave and never called in. When she returned, her supervisor warned her that she had to call in under the policy or face potential discharge. The boss also told Thompson that once she was approved for FMLA leave, she could call in just once a week rather than daily.

Thompson continued to ignore the rule, taking sick days without calling. Finally, she was terminated when she again took FMLA leave and didn’t call.

Thompson sued, alleging that her employer interfered with her right to take FMLA leave by firing her.

But the 8th Circuit Court of Appeals said Thompson was wrong. The FMLA specifically allows employers to set rules for keeping the employer apprised of the employee’s status and expected return. In addition, courts have ruled that a call-in policy can be used for that purpose.

And it was clear from the facts that Thompson understood her obligations because she had a copy of the handbook and had been informed both in writing and in person about her obligation when she returned from her first FMLA leave after not calling in.

The court said she wasn’t terminated because she took FMLA leave, but because she ignored the call-in rule. She would have been fired whether she was on FMLA leave or was just off sick for a few days and didn’t call. (Thompson v. CenturyTel, No. 09-3602, 8th Cir., 2010)

Final note: Why should you have a call-in policy? For one, having to get in touch with their supervisors discourages employees from taking sick days as vacation or personal days. Plus, it allows supervisors to gauge whether the employee seems likely to be back at work during her next scheduled shift and helps with managing workflow.

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