Sick Leave and the FMLA: Should You Call Off Your Call-in Policy?

Does your call-in policy demand that employees contact their supervisor daily when they’re out sick? If so, can you still require that of employees who are out on FMLA leave? Here’s what a ruling said last week …

Case in Point: An Arkansas telecom company’s policy requires employees to call their supervisors each day they’re absent. The policy further states that any employee who fails to call in for three consecutive workdays or three workdays during a 12-month period would be deemed to have voluntarily terminated his or her employment.

Employee Loretta Thompson took approved FMLA leave for a few weeks after her divorce to recover from depression, anxiety and high blood pressure. But Thompson failed to call in daily.

In fact, on six additional occasions, Thompson took time off but did not follow the company’s call-in policy. The last absence was the last straw. She was fired.

Thompson’s doctor sent a note saying the last absence was FMLA-related. But it didn’t matter—the firing went through anyway.

Thompson sued, saying the company interfered with her right to take FMLA leave. The company countered by saying Thompson was fired for violating the call-in policy—not for using FMLA.

What happened next? The court sided with the company, saying it did not interfere with Thompson’s FMLA rights because the call-in policy was permissible under the FMLA.

FMLA regulations say employers can “require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work.” It goes on to say that, “An employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for requesting an absence, absent unusual circumstances.”

The court also noted that the company’s policy was clearly stated, posted in the employee handbook and redistributed annually to all workers. (Thompson v. CenturyTel of Cent. Ark. LLC, 8th Cir., 12/3/10)

3 Lessons Learned … Without Going to Court

1. Have a written call-in policy. In this case, the call-in policy clearly stated what was prohibited and what the consequences were for violating it.

2. Put it in your employee handbook. This gives fair notice of your policy.

3. Distribute it annually. Such reminders are good for employees and great for your legal defense.