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Require those on FMLA leave to call in sick, just like any other employee

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in FMLA Guidelines,Human Resources

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 intermittent FMLA leave.

The trick is to make sure that the employee taking FMLA leave understands she still must call in. One way to do that is to put the notice on the FMLA 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 intermittent FMLA leave, using her employer’s FMLA leave request form, which stated that those on FMLA leave had to call in daily. The company handbook and union contract also spelled out the call-in process. The contract said failing to call in for three consecutive days would constitute job abandonment.

The medical center approved Bacon’s intermittent leave 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 FMLA rules 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.

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