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Require employee to call HR during FMLA leave

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Do you worry that some employees may be taking intermittent FMLA leave when they shouldn’t be? That is, do you suspect that when Joe calls in to care for his ill mother—for whom he has pre-approved FMLA intermittent leave—he’s really just taking a day off?

There are ways to discourage FMLA leave abuse. One is to make taking leave just a little inconvenient by requiring more than a simple call-in. You can, for example, require the employee to notify both his supervisor and someone in the HR or benefits office. That’s perfectly fine as long as everyone on intermittent leave has to do the same.

Recent case: Anthony, a custodian at Drexel University, was approved for intermittent FMLA leave for anxiety and depression. Sometime after his leave began, Drexel began requiring employees to report an absence to both the university and an outside benefits administration company. Anthony didn’t and was discharged after several FMLA-related absences were not approved.

Anthony sued, alleging, among other claims, that the additional call-in requirement interfered with his right to take FMLA leave.

The court disagreed. It said that employers are free to set their own call-in requirement, including some that are far more burdensome. As an example of a burdensome but acceptable practice, the court pointed to an employer that required employees on FMLA leave to call their employer when leaving their homes. (Szostek v. Drexel University, No. 14-1107, 3rd Cir., 2015)

Final note: Remember, apply your call-in rules to everyone on FMLA leave, not just someone you suspect of leave abuse. Also make sure the method you choose is reasonable and designed to prevent fraud—not just something designed to make it harder for em­­ployees to take legitimate leave.

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