Theprovides job protection and unpaid time off to take care of serious medical conditions, including those of relatives. If your organization has a strict attendance policy, you naturally want to make sure you don’t miscount FMLA absences in the tally, or you risk an interference-with-leave lawsuit.
But how are you supposed to know whether an absence is for an FMLA reason? If the employee never gives a reason for an absence or simply says he or she is sick, that’s not enough to require further inquiry on your part.
But to be on the safe side, ask the employee. You can even request he or she fill out anform and provide the appropriate documentation. If the employee refuses and doesn’t want to ask for FMLA leave, you’re off the hook.
If you ask, you effectively prevent the employee from coming back later and saying you knew he or she needed leave, but you imposed discipline for violating the attendance policy anyway. Just be sure that you make the same request of every similarly situated employee.
Recent case: Sandra Greenwell worked for State Farm and consistently had trouble with unauthorized absences. As a result, she was placed on the “24-hour notice” call-in program, which meant she couldn’t be absent without at least 24 hours’ notice.
State Farm did allow absences that qualified for FMLA leave without 24 hours’ notice. On several occasions, Greenwell got FMLA leave to care for her son, who had asthma.
Greenwell missed work without giving 24 hours’ notice after her son fell and bruised himself badly. She didn’t take him to the doctor. In this case, she never mentioned her son’s asthma.
When Greenwell returned to work the next day, her supervisor asked if she wanted to fill out an. After Greenwell refused, she was fired for violating the company’s attendance policy. She sued, arguing that she was absent because the fall had aggravated her son’s asthma and therefore was covered by the FMLA.
But the 5th Circuit Court of Appeals rejected her claim. It said Greenwell had every chance to take FMLA leave but chose not to. She couldn’t claim later that the company denied her the right to time off. (Greenwell v. State Farm, No. 06-30443, 5th Cir., 2007)
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