To manage the workload, employers have to know who will be at work and who will not. After all, when an employee isn’t at work, someone else has to step in and get the work done. Of course, employees sometimes do get sick or have emergencies. A well-crafted call-in policy can help employers cope with unexpected absences.
Colorado employers can and should have a call-in policy. They also can and should discipline employees who don’t follow the rules, up to and including discharge for not calling in or failing to show up.
That’s true even for employees who may be absent because of -covered reasons such as family illness or other emergencies. The key is to let employees know what the policy is and enforce it consistently.
Recent case: Todd Treat worked for American Furniture Warehouse and took 10 weeks of , purportedly for mental health reasons while dealing with a divorce and criminal proceedings. He returned to work with the criminal charges still pending.
American Furniture required all employees who were going to be absent to advise their supervisors. The policy also stated that an employee absent from work for three consecutive days without authorization would be deemed to have abandoned his position. The consequence: termination.
After he returned from FMLA leave, Treat did not show up for his scheduled shifts for three days. invoked the attendance policy and terminated him. Meanwhile, Treat got a note from his health care provider that read, “Please give short term disability to [Treat] until May 1, 2005.” (Apparently, had Treat been placed on disability leave, he would have been able to plead guilty to the criminal charges against him, serve his sentence and then return to work.)
Unfortunately for Treat, American Furniture didn’t get the note until after it had decided to terminate him.
Treat sued, alleging, among other claims, that he could not be fired for not calling in. The court disagreed. It said that employers could require employees who need FMLA leave to follow their employers’ call-in and attendance policies. (Treat v. American Furniture Warehouse, No. 06-CV-02029, DC CO, 2008)
Final note: Do employers have to give FMLA leave for short prison sentences? No. In this case, Treat was trying to show that he was also suffering from a serious health condition due to the mental stress of a messy divorce and pending criminal charges. He never got that far.
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