You probably have a policy requiring employees to call in when they need time off to deal with health issues or face termination for abandoning their jobs.
All well and good. Many employers create their own notification procedures because the how federal leave law doesn’t spell out workers should tell employers they may have a serious health condition.
But don’t expect your procedure to trump the FMLA.
Procedures that conflict with or are more stringent than the regs can’t be used to deny to employees who otherwise qualify. Make sure supervisors understand that, under FMLA:
- There’s no “official” way for employees to tell their employers they may need FMLA leave. A simple “I’m sick and may need medical treatment” will do. That shifts the burden to the employer, who can ask to see medical provider certification.
- Employees must give 30 days' notice if their need for leave is foreseeable. In emergencies, they must let the company know as soon as practicable.
- Employees shouldn’t be punished for not following a call-in rule if they provided the company with notice some other way.
Recent case: Claude Maynard’s employer had a policy that said three consecutive absences without a call to one’s supervisor meant automatic discharge. For 20 years, Maynard followed the policy.
Then he saw his doctor to evaluate a growing lump in his breast. After learning he needed surgery, Maynard called HR to report he would be off work until the lump had been removed. He told HR he couldn’t work because the lump interfered with his ability to lift his arm and wear a shirt. He also asked someone in HR to inform his supervisor.
HR sent him temporary-disability and . Meanwhile, decided to fire Maynard because he hadn’t called in using the company procedure. Maynard sued, alleging that his discharge was retaliation for invoking his right to FMLA leave.
The court agreed that using the call-in policy as an excuse was suspect. A jury will decide if the company’s stated reason for the discharge was valid or just an excuse to fire Maynard because he wanted FMLA leave. (Maynard v. Total Image Specialists, No. 2:05-CV-504, SD OH, 2007)
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