As I mentioned in my five-part blog series on managing possible leave abuse under the FMLA, employers can hold employees accountable for failing to comply with call-in procedures, even when the absence is connected with FMLA. This point was well-illustrated in the recent case of Chappell v. The Bilco Company, in which the employee ably demonstrated various ways to violate the company’s attendance policy and procedures.
The employee provided FMLA certification that he would be needed to care for his mother after her hip surgery. When he actually took the leave, however, the employee simply left a message for his supervisor rather than speaking with him directly, as required by the call-in procedures set forth in the company’s attendance policy. Because of this, he was assessed points under the attendance policy.
Six months later, the employee called his supervisor to inform him about two absences, but did not state that they were to care for his mother because of concerns about her blood sugar level. He informed his supervisor of this after the fact, and was directed to submit new FMLA paperwork. Because he did not do so, he received more points under the attendance policy.
The following month, the employee told his supervisors that he neede to take his mother to a doctor’s appointment (for which he had previously submitted other FMLA certification). Because of the workload, he was told that he needed to tell them the actual appointment time, and that he needed to report to work before and after the appointment. The employee not only failed to inform them of the appointment time, he failed to report to work at all that day. He was given a 1/2 day of FMLA, but the other 1/2 day was counted against him under the attendance policy, resulting in his termination.
The employee claimed that he should not have been assessed points for these various absences, because they were for FMLA-covered reasons. The U.S. Court of Appeals for the Eighth Circuit disagreed, finding that his non-compliance with the employer’s call-in procedures and his supervisors’ directions was appropriately counted against him for purposes of the attendance policy.
So, keep in mind that one tool you can use to manage employees on FMLA is to have an attendance policy with specific call-in procedures. Then make sure that you hold all employees accountable under the procedures- not just those on FMLA, because otherwise you’ll face a legitimate claim that you are targeting employees on FMLA.