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You’re risking FMLA lawsuit if call-in rules don’t allow flexibility in emergencies

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in FMLA Guidelines,Human Resources

Employers are generally free to set their own rules for when and to whom employees must call to report that they will unexpectedly have to miss work. But thanks to a recent 2nd Circuit Court of Appeals decision, that’s now far less certain.

Recent case: Christopher Millea is a former Marine who suffers from severe post-traumatic stress disorder as a result of combat during the first Gulf War. He got a job with Metro-North Railroad Company. Despite extensive psychotherapy and medication, he still has occasional panic attacks and fatigue. At those times, he needed time off.

Millea applied for intermittent FMLA leave to cover the time off and was approved for 60 days per year.

About that time, Millea began having a hard time getting along with a supervisor. During a phone call, the two had a heated argument, which triggered one of Millea’s panic attacks. He left work to see his doctor.

Because his panic was caused by con­­­­­tact with the supervisor, Millea didn’t want to call the man back to report he needed emergency inter­mittent FMLA leave for his condition. So instead of following company rules that required personally reporting all absences to an employee’s immediate supervisor, Millea called a co-worker and asked him to inform the supervisor.

The rule was very specific: “If the need for FMLA leave is not foreseeable, employees must give no­­­­tice to their supervisor as soon as possible.”

Because Millea didn’t follow the rule, his time off was not listed as FMLA leave. The company also placed a disciplinary notice in his personnel file, which stayed there for a year. Millea then transferred to a position that paid a little less so he would not have to work with the same supervisor.

Millea sued, alleging that by en­­forcing the call-in rule to the letter, his employer violated the FMLA.

He argued that because the FMLA regulations specify that in an emergency, an employee can designate a friend or relative to notify the em­­ployer about the need for FMLA leave, that implicitly means that by­­passing a call-in rule is acceptable dur­­ing an emergency. He argued that his situation fell within the regulation.

The 2nd Circuit Court of Appeals agreed with Millea. It recognized that the FMLA requires employees to “comply with the employer’s usual and customary notice and procedural requirements for requesting leave.” But the FMLA regulations also say that the rule is relaxed in “unusual circumstances” or where the company policy conflicts with the law.

And because Millea couldn’t foresee his need for leave, the court reasoned he could use an alternative notification method, such as calling someone else to report him off work. It saw the situation as no different than if a spouse calls in for an incapacitated employee. That technically would violate this company’s rule of personal calls to a supervisor.

In effect, the policy contradicted the FMLA and was therefore invalid. (Millea v. Metro-North Railroad Company, No. 10-409, 2nd Cir., 2011)

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