Enforce Your Employee Call-In/Notice Requirements -- Even for FMLA Leave

 In that handbook of yours should be a page -- maybe a few lines -- on an employee's responsibility to notify you if they are going to miss work. Who to call, when to call, that kind of stuff.

A recent case from the Sixth Circuit (this one) [an enhanced version of this opinion is available to lexis.com subscribers] reaffirms that employees need not relax these rules -- even when the employee is seeking leave under the Family and Medical Leave Act. 

In White v. Dana Light Axle Manuf., the employer had a simple rule: when you're going to be out, call it in. The plaintiff, who needed FMLA leave for a hernia surgery, assumed that because he had previously met with the employer in person to discuss his upcoming hernia surgery, he didn't need to later call in his absences.

Unfortunately for the plaintiff, the U.S. Department of Labor disagreed when implementing its FMLA regulations, which state that "[w]here an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied. . . ." In other words, an employer may condition FMLA leave on its employee properly following it's notice requirements. Consequently, the Sixth Circuit held that even though the plaintiff may have otherwise discussed FMLA leave with his employer, the employer could still fire the employee for not following the call-in requirements of its attendance policy.

So, here's the deal. Just because someone is taking FMLA leave doesn't give that person a free pass to ignore your call-out rules. Just make sure to apply your call-out/attendance policy evenly to everyone -- those who take FMLA leave, and those who take leave for non-FMLA reasons. Because uneven enforcement smacks of FMLA interference.

This article was originally published on Eric B. Meyer's blog, The Employer Handbook.

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