Calling in Sick for a Co-Worker? FMLA Can Get Lost in the Translation

Sometimes, employees are so sick they can’t call into work. So, they have a friend or co-worker do it for them. But, as a ruling this week shows, an employee’s request for FMLA leave can get lost in the translation. Here’s how to correctly handle this old-school game of telephone … 

Case In Point: Tanya Bosley worked in an Iowa meat processing plant and she carpooled to work every day with a co-worker. One morning, when the co-worker showed up at Bosley’s door, Bosley said she was too depressed to go to work. She asked the co-worker to let their supervisor know she wouldn’t be in. When the co-worker arrived at work, she promptly told their supervisor that Bosley “was sick.”

The company has an automated phone system to receive employees’ calls regarding illness. But Bosley never used the call-in procedure for a whole month of absences.

Within four weeks, the company terminated her for exceeding the maximum of three call-in violations. Bosley found out that she’d been fired, she said, only when she visited the plant later to pick up FMLA paperwork. She was shocked.

Bosley sued for interference of her FMLA rights. The company argued that it was never notified that she needed designated FMLA leave. The co-worker only said Bosley was “sick.” Bosley pushed back, saying “sick” is “sick enough” for FMLA notice.

What happened next?

FMLA Cert D

The court tossed out Bosley’s case. While it agreed that Labor Department regulations allow employees to rely on a “spokesperson” or “responsible party” to inform the employer of an FMLA-covered absence and a need for leave, Bosley didn’t give enough information. (29 C.F.R. § 825.303)

In fact, the court said, Bosley’s co-worker could only recall telling supervisors that Bosley was “sick”—not that she was depressed and unable to work. The court also noted that Bosley’s delay in reporting her own illness to the employer was inexplicable. No FMLA and no job.  (Bosley v. Cargill Meat Solutions Corp.8th Cir., No. 12-1290, 2/5/13)

3 Lessons Learned…Without Going to Court

  1. Listen to the spokesperson. If an employee has someone else make her call, you only have to listen to what the “spokesperson” or “responsible party” has to say. Employers don’t need to take any additional steps just because the call was made by an employee’s representative.
  2. Provide a call-in number for absences. This removes any obstacles (or excuses) from employees notifying you that they won’t be in to work. The court said it doesn’t get much easier than that. Bosley was depressed and could have picked up her phone to leave a message.
  3. Have an attendance policy. Employers should not be expected to put up with ongoing unprotected “no show/no call” absences. No notice of legal rights. No showing up. No calling in. No job. 

FMLA Regulations: Employee notice requirements for unforeseeable FMLA leave

(a) Timing of notice . When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave. See § 825.303(c). Notice may be given by the employee’s spokesperson ( e.g. , spouse, adult family member, or other responsible party) if the employee is unable to do so personally. For example, if an employee’s child has a severe asthma attack and the employee takes the child to the emergency room, the employee would not be required to leave his or her child in order to report the absence while the child is receiving emergency treatment. However, if the child’s asthma attack required only the use of an inhaler at home followed by a period of rest, the employee would be expected to call the employer promptly after ensuring the child has used the inhaler.

Read more about the required content of the notice and compliance with employer policies in FMLA Regulation §825.303.