Communicate policies well

Employees have many rights under the FMLA, but employers have some, as well. One of them is the right to have and enforce call-in policies. The related FMLA regulations indicate the following:

“An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” 29 CFR 825.3012(d)

You may, for example, require that notice of the need for leave include the reasons for the leave, the anticipated duration of the leave, and the anticipated timing of the leave. You may also require that employees contact a specific individual, such as their immediate supervisors or a leave administrator.

If an employee does not comply with your usual notice and procedural requirements and no unusual circumstances justify the failure to comply, FMLA leave may be delayed or denied.

In some situations, however, you might need to be flexible. If, for example, an employee has an emergency situation and complying with your policy is not practicable, the employee would be allowed to provide notice as soon as practicable, and he or she would still have FMLA rights.

But if you have a call-in policy, such as one that indicates that a no-call, no-show of three days or more may result in termination, and an employee fails to call in to report an unexcused absence, and no extenuating circumstances are involved, you may apply the policy.

Courts have supported employers who have such policies and apply them when called for. One such case involved an employee who did not follow the company’s instructions for requesting approved leave. The employee was terminated for violating the company’s call-in policy, which included a three-day no call/no show provision. In siding with the employer, the court indicated that the termination was for job abandonment; and not because the employee exercised her FMLA rights. Wisely, the policy applied to employees who were absent from work without approval for any reason, not just for reasons related to the FMLA.

Therefore, if you don’t have a call-in policy, you may want to consider crafting one. If you do have one, make sure it applies to all reasons for leave or absences, not just FMLA leave. Clearly communicate it so employees know what to expect and have less of an argument that they were not aware of the policy.