May an employer require employees to call two separate numbers to report absences?
Yes, and doing so might help curb FMLA leave abuse
Do you struggle with your FMLA administration? Do you wish employees would take FMLA leave more seriously? Do you suspect some employees are abusing FMLA leave? Adopting one fairly simple rule might help:
Require employees to make two separate calls to report an FMLA absence.
First, they must call their supervisor to report the absence, then they must also call the absence/leave/TPA to report the absence as FMLA leave. Failure to make the latter call can risk the employee’s FMLA leave rights.
The regulations are pretty clear that employers may require employees to follow the company’s normal policy and procedure for calling in, absent extenuating circumstances. The FMLA does not, however, dictate what this policy and procedure looks like.
To help fill in the blanks, courts have weighed in favor of employer policies that require multiple phone calls.
Take, for example, a case where an employee called in to his supervisor, but failed to report his absence to the third party leave administrator, as required by company policy:
An employee, Peter, needed intermittent FMLA leave for a serious health condition. He was instructed per company policy, to report any immediate or upcoming absences to his manager/supervisor using the department's attendance procedure, and then to call the company’s third party leave administrator at any time to request leave.
Company policy also indicated that more than seven unapproved absences in a year could result in termination. Peter had a history of attendance issues and had amassed seven such absences. Before moving to termination, however, the employer confirmed the reasons for the absences to ensure they did not fall under the FMLA or other approved reason. Then it fired Peter.
Peter sued, arguing that some of his “unapproved” absences were protected by the FMLA. Even assuming Peter was entitled to FMLA leave for any of the absences, he did not call the third party leave administrator to report any of the absences as FMLA leave. Peter also contended that once an employer is on notice that FMLA leave may apply, it has the burden to seek further information regarding said leave and that he was not required to specify to the company that his absences were FMLA related.
The court didn’t buy Peter’s reasoning. It held that Peter didn’t provide any evidence of unusual circumstances excusing him from following the employer’s policy, To the contrary, Peter knew he needed to call the third-party leave administrator, and he admitted that he hadn’t done so.
Putting some additional steps in requesting FMLA leave might help weed out some of the bad apples; therefore, easing your administrative burdens. While you might not have a third party leave administrator, you could require employees to call not only their supervisor regarding an absence, but also whoever in your organization handles FMLA leave. The added step could provide an extra layer of scrutiny to a particular absence.
Perry v. American Red Cross Blood Services, Tennessee Valley Region, 6th Circuit Court of Appeals, No. 15-5645, June 01, 2016
You may also enjoy the following articles:
Don’t be afraid to have and enforce call-in policies
Court addresses the importance of capturing an employee’s call-in information
FAQs about FMLA certifications
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