Poor call-out procedure communication leads to FMLA case
Key to remember: Make sure your procedure is well communicated.
Applies to: Private employers with 50 or more employees and all public employers.
Impact to customers: A cautionary tale to help instruct customers.
Possible impact to JJK products/services: A news item at this time, this could be added to a future update of the Essentials of FMLA manual.
Stefanie was injured at work and, logically, filed for workers’ compensation. She was offered an alternative position but, because of her injury, she could not drive. The drive was 45 minutes each way, and the workday began at 4:00 a.m., when public transportation was not available. Given her restrictions, she instead called out sick and believed her absences were excused. The employer was aware of her driving limitations.
The company used an outside administrator to handle its workers’ compensation and requests for leave, but these were handled by two separate departments. Stefanie, however, didn’t realize that she had to talk to both departments separately — one for workers comp, and one for other leave — because the process was not well communicated.
When she learned about the dual call requirement, she made the additional call and requested family medical leave, but on that same day, Stefanie was terminated due to excessive absences. She sued.
One of the particulars the court looked at is, if the situation involves workers’ comp, employees may be offered light duty, and if the employee turns down the light duty, she could risk losing workers’ comp benefits, but would still be entitled to FMLA leave.
Stefanie called out every day and provided medical information supporting the leave. She was confused about having to make two separate calls. When talking to HR about the situation, she was told to call a particular number to request leave. This information, however, may not have been as clear as it could have been. The court ruled that there were issues regarding whether the company’s policy and procedures for requesting leave were ambiguous. The case was allowed to proceed.
In addition to the call-out procedure confusion issue, the court also found that the company failed to engage in the interactive process under the Americans with Disabilities Act (ADA). After Stefanie indicated she wanted to work but could not, the company did not engage in an interactive process to discuss the situation and look at potential effective reasonable accommodations.
Clear, concise communication to Stefanie and all employees could have helped avoid this case. When in doubt, overcommunicate. Make checklists, outline all steps employees are expected to take, include graphics, communicate in multiple methods, test the information, ask for input. While this seems to be a lot of work, it’s likely cheaper than a court case.
Stefany Hazelett v. Wal-Mart Stores, Inc., 9th Circuit Court of Appeals, No. 19-16628, October 6, 2020.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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