Employees sometimes think that just calling in sick is enough to put their employers on notice that they need. That’s simply not the case.
Employees have an obligation to give their employers enough information about the underlying reason for the absence to trigger the possibility that the employee has a serious health condition.
It’s not enough that the employer knows the employee has had health problems in the past—even if the employee is acting unusually or exhibiting signs of mental or psychological problems.
Until recently, at least one federal appeals court had told employers they had to consider aberrant or unusual behavior as notice (based on the idea that the employee was incapable of telling his employer he was having these problems). Now, however, the U.S. Department of Labor has eliminated the regulation on which the court relied.
Originally, the regulation said employees have to give notice within no more than one or two working days of learning of the need for leave, “except in extraordinary circumstances where such notice is not feasible.”
Now the regulation says unforeseen leave notice must be provided “within the time prescribed by the employer’s usual and customary notice requirements.” In the following case, the 8th Circuit Court of Appeals concluded the new language means employers aren’t obligated to guess about an employee’s need forleave based on behavior.
Recent case: Talmadge Scobey was demoted because of four unexcused absences due to intoxication.
Scobey had called in while clearly intoxicated and reported that he was “done” with the company. Another day, he reported that his ex-father-in-law had died and he needed to attend the funeral. He called again and spoke with slurred speech to a supervisor, leading the supervisor to think Scobey was drunk again. Scobey’s comment that he was “f***ed up” added to the supervisor’s belief. The supervisor marked the absences as unexcused and demoted Scobey under the company’s attendance policies.
Eventually, Scobey got inpatient alcohol treatment, using leave time covered by the FMLA. Still, he sued, alleging that he shouldn’t have been demoted for the earlier absences because his behavior should have triggered the company’s obligation to tell him about FMLA leave. He argued that his supervisor knew he was on a binge and therefore had a serious health condition.
The court disagreed, given the new DOL regulation. Plus, being on a drinking binge for days isn’t FMLA protected because being intoxicated isn’t a serious health condition—even if alcoholism and addiction treatment is covered by the FMLA. (Scobey v. Jucor Steel, No. 08-1192, 8th Cir., 2009)
Final note: Remember that behavior related to a serious health condition like an addiction can’t be an excuse for absences or. Employers don’t have to tolerate it when employees are high or drunk on the job, fail to come to work or perform poorly. Nor do they have to mark such absences as FMLA leave. Plus, being drunk or high doesn’t automatically mean the employee is an addict.
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