Good news from the 8th Circuit Court of Appeals: If you have a system for employees to call in sick, you can require everyone to use it—even employees on approved
The trick is to make sure that the employee taking understands she still must call in. One way to do that is to put the notice on the leave request form and require that the employee sign off, acknowledging that she understands the policy applies to her FMLA leave, too.
Recent case: Melondy Bacon, a janitor for a medical center, began breaking out in hives. Her doctors thought the cause might be some of the chemicals she came into contact with at work. They recommended she take time off to get treatment.
Bacon submitted a request for
The medical center approved Bacon’s request, and she began using the leave immediately. For a few weeks, Bacon called in daily to report her intermittent leave. Then she stopped calling. About a week later, the employer terminated her, citing her failure to call in under the policy and union contract.
Bacon sued, alleging she had been terminated for taking FMLA leave.
A lower court dismissed her case, and she appealed to the 8th Circuit. It refused to reinstate her case, concluding that Bacon knew about the requirement and that it applied to everyone. Thus it was perfectly legal to fire her for breaking the rule. The center had shown it would have fired her whether she was on FMLA leave or not. (Bacon v. Hennepin County Medical Center, No. 08-1337, 8th Cir., 2008)
Final note: The new that took effect Jan. 16 make clear that employees on FMLA leave must use their employers’ normal call-in procedures. For more information, visit www.theHRSpecialist.com/thenewFMLA.
- Injured worker insists on waiting for treatment
- RIF after FMLA leave? Possible, but proceed with caution
- New risk: Workers can claim retaliation even if there's no adverse job action
- Clarify contract status by separating arbitration clause from job application
- If doctor's note is unclear, insist on a properly completed FMLA certification form