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Under new FMLA rules, think twice before automatically firing workers who don’t call in

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in Firing,FMLA Guidelines,Human Resources,Leaders & Managers,Management Training

You have probably heard that the new FMLA regulations changed what employers can expect from their sick employees.

Under the original FMLA regulations, employees were expected to report their need for FMLA leave “as soon as practicable” if they couldn’t provide notice 30 days before they needed to miss work. The old regulations included interpretive examples and suggested that employees had a day or two to call in if they were out for FMLA protected reasons.

The new regulations eliminated the previous examples and substituted one that said employers could enforce their usual call-in rules, such as requiring employees to call in before missing a shift.

Employers rejoiced, assuming they could safely discharge employees who didn’t show up and didn’t call in.

A new case calls that assumption into question.

Recent case: James Randolph worked for Grange Mutual Casualty and had an absenteeism problem. He was placed on probation and warned that if he had one more unauthorized absence, he would face termination.

The company had a call-in rule that required employees who would be missing a scheduled workday to call in within 30 minutes of their scheduled work time.

Randolph suffered from a form of depression and was allowed to take intermittent FMLA leave for such things as medication checks and treatment.

Randolph claimed that one evening before a scheduled workday, he went into a dark depression and “blacked out” until he awoke the next day at 3 p.m., having missed his workday. He then headed for his doctor’s office and decided to check his voice mail before calling his supervisor.

The supervisor had already fired Randolph after not hearing from him by the 30-minute deadline. That termination was by voice mail, which Randolph retrieved on his way to the doctor. Randolph said the news worsened his condition so much that he drove straight to his mother’s house, crying. He never made it to the doctor.

His mother then called in for him about 11 p.m., explaining that her son was having a “nervous breakdown.”

When the company wouldn’t reconsider Randolph’s termination, he sued, alleging that he had called in as “soon as practical.”

The company argued that the regulations allowed it to insist that Randolph follow the call-in rules. It pointed to another recent case in which the court said an employee feeling an illness coming on should call immediately and not wait until work is missed.

But the court said that Randolph’s suit deserved a trial. It concluded Randolph had no way of knowing that he would black out, was shocked when he learned he had been terminated and then tried to notify his employer via his mother. That, said the court, could be seen as prompt notice under both the old and the new regulations.

Now a jury will decide whether that’s the case. (Randolph v. Grange Mutual Casualty Company, No. 09-AP-519, Court of Appeals of Ohio, 2009)

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